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Hon. Jeffrey S. Chase, Dec, 21, 2021
"On November 4, the Board of Immigration Appeals issued its precedent decision in Matter of M-F-O-.1,2 At first glance, the decision seems to be a correction regarding when the accrual of continuous presence for voluntary departure ends, necessitated by a Supreme Court decision rejecting the Board’s prior take on the question. The headnote summarizing the decision mentions only this issue.
However, reading further into the decision reveals an additional motive. It turns out that the respondent in M-F-O- sought asylum; it was the denial of that protection that brought voluntary departure into play. The respondent stated that he feared being persecuted by a violent gang on account of his membership in a particular social group consisting of “indigenous Guatemalan youths who have abstained from joining the street gangs.”
The BIA uncharacteristically assumed the above group to be a valid one for asylum purposes. In doing so, the Board was aware of proposed regulations being drafted by the Departments of Justice and Homeland Security, which are likely to create a more inclusive standard for particular social group determinations than that currently employed by the Board.
But in M-F-O-, the Board sought to make the point that even where such groups are legally recognized, no asylum will be forthcoming unless a nexus is found between the group membership and the harm. And the Board in upholding the asylum denial in M-F-O- aimed to bolster a standard it has employed in recent years to make it remarkably easy to deny the existence of such a nexus.
Our asylum laws state that a nexus exists when persecution is “on account of” one of the five statutorily-protected grounds.3 Whether or not a nexus is found depends on what is meant by those three words. Let’s therefore take a deeper dive into the meaning of that term.
The Traditional Standard 4
“On account of” is by no means a phrase specific to immigration law; it long predates the Refugee Act of 1980. The Fifteenth Amendment of the U.S. Constitution, ratified in 1870, states in part that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The Nineteenth Amendment, ratified in 1920, similarly prohibits denying or abridging one’s right to vote “on account of sex.”
As to how that term should be interpreted, the Supreme Court recently addressed the question outside of the asylum context in Bostock v. Clayton County,5 a case involving employment discrimination under Title VII of the 1964 Civil Rights Act. The Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of.”6
The Court continued that the standard requires a court to apply the “simple” and “traditional” “but-for” test. As the Court explained, "a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”7
The Court recognized that the “but-for” standard is a “sweeping” one, acknowledging that “[o]ften, events have multiple but-for causes.”8 The Court further observed that “[w]hen it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.”9
According to the Court:
It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.10
The Court also provided a hypothetical:
Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing "because of sex" if the employer would have tolerated the same allegiance in a male employee.11
So under the Court’s hypothetical, any argument that the “real” or “primary” reason for terminating the employment was being a Yankees fan, and that the gender of the employee was merely “incidental” because women who aren’t Yankees fans aren’t fired, and in fact are treated equally as a group to men, is rejected because removing the gender of the Yankees fan from the equation brings about a different result. Note that under this test, the question is not the general treatment of women, but rather the impact of being a woman on the treatment of the specific employee. Also, the test does not require a test to determine the dominant reason for the unequal treatment; in the hypothetical, there was no concern over whether being a Yankees fan or a woman was the stronger motivation for the termination. This is in fact a clear standard that is easy to both understand and apply in practice.
The Asylum “One Central Reason” Standard
Let’s turn back to the asylum context. In 2005, Congress included language in the REAL ID Act requiring a statutorily-protected ground to be “at least one central reason” for the persecution in order to meet the “on account of” requirement. Did this added language create a different standard for asylum cases than that described in Bostock?
One leading authority points out that an earlier version of the 2005 legislation would have required the protected ground to be “the central motive” behind the persecution. However, in the final version, “the” was changed to “at least one,” meaning that a protected ground need be only one of multiple causes behind the harm.12
Also, note the replacing of “motive” with “reason.” The Cambridge English Dictionary defines “reason” as “the cause of an event or situation or something that provides an excuse or explanation,” providing the example: “the reason for the disaster was engine failure, not human error.” “Reason” would thus seem to cover more territory than “motive,” as an engine has no motive to fail.
The change from “motive” to “reason” lends itself to what scholars of international refugee law have termed the “predicament approach,” in which a causal connection between the persecution and a protected ground satisfies the nexus requirement irregardless of evidence of a specific persecutorial intent.13 The concept is illustrated through the example of a conscientious objector who is imprisoned for evading mandatory military service. While the conscription law applies equally to all, the real cause may be a protected ground where noncompliance with the law was because of a religious or political belief.14
It is for this reason that one leading scholar viewed the choice of word as an indication “of increased conformity with international standards” in line with the fact that the Refugee Act was enacted to bring U.S. law into conformity with international treaty obligations under the 1967 Protocol.15
The BIA’s Initial Take on “One Central Reason”
The BIA initially interpreted “one central reason” as a reason that is not “incidental, tangential, superficial, or subordinate to another reason for harm.”16 In doing so, the BIA explicitly rejected the view that “one central reason” must be “dominant.” As the Board explained, “[t]he problem in classifying one motive as “dominant” or “central” is that it renders all other motives, regardless of their significance to the case, secondary and therefore ultimately irrelevant.”17 (It is worth noting the Board’s use of the word “motive” rather than “reason.”).
However, the Board’s inclusion of the word “subordinate” in its definition was rebuffed by the U.S. Court of Appeals for the Third Circuit, which found it to be the “mirror image of the rejected ‘dominance’ test: the requirement that a protected ground, even if a ‘central’ reason for persecution, not be subordinate to any other reason.”18 In other words, the court found no difference between requiring a reason to be dominant (which the Board correctly found it could not do) and prohibiting a reason from being subordinate (which the Board then did instead). The Board has since dropped the word “subordinate” when describing the standard.
So in summary, the “at least one central reason” standard allows a cause for persecution to be one of many, and does not require the protected ground to be dominant in comparison with the others. It only prevents the reason from being incidental, tangential, or superficial. And again, the word is “reason” and not “motive;” surely, Congress saw a difference between those words or it wouldn’t have changed the latter to the former in the final version.
In its recognition that there may be multiple causes for persecution, in its substitution of “reason” for motive, and in its rejection of a dominance test, the “one central reason” test is indistinguishable from the standard described in Bostock.
Circuit Courts Have Applied the Bostock “But-For” Test in Asylum Cases
The Fourth Circuit has addressed the “one central reason” standard in a number of decisions in which it has consistently applied the “but-for” test.19 In one, a woman from El Salvador sought asylum after members of Mara 18 threatened to kill her for blocking them from recruiting her son. The BIA upheld the Immigration Judge’s finding of no nexus, on the grounds “that gang recruitment was the central motivation for these threats;” while claiming that "the fact that the person blocking the gang members' recruitment effort was their membership target's mother was merely incidental to the recruitment aim.”20
Note the Board’s citing of a completely incorrect standard: “the central motivation,” referencing the wording that Congress rejected in place of the language it ultimately adopted. As a practical matter, the Board viewed the recruitment aim as ending its nexus inquiry, whereas I would argue that it should have served as the starting point. Once we know that the gang sought to recruit the son, we gain a perspective that allows us to better understand how the particular social group membership might put the asylum seeker in harm’s way.
Properly applying the “but-for” test described in Bostock to the above fact pattern required removing the family relationship from the equation to see if the threat of harm would remain. Of course, it would not; it was the specific fact that the asylum-seeker was the intended recruit’s mother that put her between the gang and her son, blocking the recruitment. And it was because she stood between the gang and her son that the former sought to kill her. The maternal relationship wasn’t tangential or incidental to the recruitment; it was precisely the reason that the asylum-seeker was an obstacle that needed to be eliminated.
That is why the Fourth Circuit concluded that the family relationship was “at least one central reason” for the threatened harm: because the petitioner’s “relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18. The court added “The BIA's conclusion that these threats were directed at her not because she is his mother but because she exercises control over her son's activities draws a meaningless distinction under these facts.”21
The Eleventh Circuit also applied the traditional “but-for” test in a 2019 decision in which the Board had found no nexus because a cartel had a financial motive in targeting the Petitioner in order to extort money owed to the cartel by his uncle.22 The Eleventh Circuit found that "it is impossible to disentangle [the Petitioner’s] relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin." The court continued that absent the familial relationship with the uncle, the cartel never would have hunted the Petitioner down or persecuted him. The court thus rejected the Board’s view that the family relationship was merely incidental; to the court, it was "abundantly clear to us that the family relationship was one central reason, if not the central reason, for the harm visited upon Mr. Perez-Sanchez."23
The Ninth Circuit has also held the “but-for” cause to be the correct standard for determining nexus in asylum cases, citing the Black’s Law Dictionary definition of the term as "[t]he cause without which the event could not have occurred.”24
The Description of the Standard By the BIA (and an Acting Attorney General)
The BIA’s application of the “one central reason” standard is best summarized in a recent decision of the Third Circuit: "although the BIA correctly recited the 'one central reason' test, it applied something altogether different."25
In 2011, the BIA recognized the “one central reason” standard as requiring the asylum seeker to “demonstrate that the persecutor would not have harmed the applicant if the protected trait did not exist.”26 What the BIA described is the traditional “but for” test. And in 2017, in its decision in Matter of L-E-A-, the Board described the test as “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.”27
Interestingly, less than a week before the end of the Trump Administration, a briefly serving Acting Attorney General issued a second decision in Matter of A-B- recognizing that to establish a nexus for asylum purposes, “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.”28
The Acting Attorney General listed the “but-for” test and the fact that the ground not be incidental or tangential as if they were two separate requirements, even though a ground that serves as a “but-for” cause for persecution cannot be incidental or tangential. Also curious is the Acting A.G.’s statement that the ground could not be incidental or tangential to another reason for the act. Was this meant to be a return to the dominance test that was rejected by the Third Circuit and the BIA? Or might this have simply been the result of sloppy drafting, in which the Board’s language from Matter of J-B-N- & S-M- was modified by removing the word “subordinate” that the Third Circuit had rejected, while neglecting to also remove the “to any other reason” language that followed? The question was rendered moot when the decision was vacated in June by Attorney General Garland.29
The Board Has Applied an Incorrect Standard for Nexus
Descriptions aside, as noted by the Third Circuit, the standard actually applied by the BIA has been something entirely different. In many of the Board’s decisions, asylum has been denied for lack of nexus simply because the adjudicator deemed a non-protected reason to be the persecutor’s primary motive, without regard to the impact of the protected ground on outcome. This approach is not only inconsistent with the test applied in the above-mentioned circuit court cases (and in Bostock), but is inconsistent with the standard described by the Board itself which rejected a test for dominance.
The Second Circuit made this point in 2014, reversing a decision in which the IJ applied a “the central reason” test, as opposed to “at least one central reason.” The court emphasized that this was not harmless error; rather, it “set up an ‘illogical’ rubric for analyzing motivation that presupposed that multiple motives for persecution must be analyzed in competition with one another, rather than in concert.”30 The court further pointed out that this was not an isolated error by the agency, citing three other decisions dating back to 2007 in which the Board had done precisely the same thing.31
And the Fourth Circuit this year identified an oft-repeated error of the Board in determining nexus on account of family "by incorrectly focusing on why the gang targeted Petitioner's family, rather than on why they targeted Petitioner herself."32 In another recent decision, the Fourth Circuit stated that "'once the right question is asked' -- that is, why was Petitioner being targeted -- the conclusion is quite clear: 'whatever [the gang]’s motives for targeting [her] family, [Petitioner herself] was targeted because of [her] membership in that family.'"33
Returning to the Supreme Court’s Yankees fan hypothetical in Bostock, the Board has been doing the equivalent of looking to how women were generally treated as a group (which, in the Court’s hypothetical, was equivalent to men) to conclude that gender was only incidental to being a Yankees fan, rather than deeming gender to be “at least one central reason” for the particular employee being fired due to its impact on outcome, as male Yankees fans were not terminated. Of course, the Supreme Court in Bostock directly refuted this approach. Similarly, in the asylum context, as the Fourth Circuit made clear, it doesn’t matter what view (if any) the gang has of the asylum-seeker’s family. It only matters that the individual asylum seeker was targeted by the gang because of the family membership. If so, there is a nexus to a protected ground.
In Matter of M-F-O-, the Board specifically referenced its 2017 decision in Matter of L-E-A- (i.e. L-E-A- I”), noting that its nexus analysis in that case “remains good law.”34 Let’s take a closer look at that decision. We will first see what standard the Board purported to apply to the facts of the case. Next, we’ll apply the traditional “but-for” test described in Bostock to those facts. And lastly, we’ll examine the standard actually applied by the Board.
Matter of L-E-A-: The Board’s Statement of the Law
In Matter of L-E-A-, a criminal cartel sought to kidnap the respondent in his native Mexico. The respondent’s father owned a store from which the cartel wished to sell drugs. When the father refused the cartel’s request for access, it targeted the respondent as a means of coercing the father. The Immigration Judge denied asylum, finding that the cartel’s motive was to sell drugs, not to harm members of the respondent’s family. The Immigration Judge continued that the cartel’s focus was the store, stating that if the store were to be sold, the cartel would then target the new owner.
On appeal the Board recognized in a footnote the Fourth Circuit’s case law on the matter. Instead of being instructed by it, the Board simply stated that “[w]hile it is not clear how the Fourth Circuit would apply that precedent to the facts here, this case does not arise in the Fourth Circuit.”35 With those words, the Board dismissed the standard traditionally employed in such matters. And with what did the Board replace it?
The Board started down the same road as both Bostock and the Fourth Circuit. It said that nexus is not established “if the persecutor would have treated the applicant the same if the protected characteristic did not exist,” a correct description of Bostock’s “but for” test. In then citing its own prior take on “one central reason,” the Board omitted the word “subordinate,” stating instead that the protected characteristic “cannot be incidental [or] tangential…” It continued by noting that both direct and circumstantial evidence of motive should be considered, and that sometimes “a more nuanced evaluation” will be warranted.36
The Traditional “But For” Standard Applied to the Facts of L-E-A-
As the Supreme Court stated in Bostock, "a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause."37
The traditional “but for” standard would thus remove the respondent’s familial relationship to his father from the equation. We know that the cartel’s aim is to compel the respondent’s father into allowing them to sell drugs in his store. The cartel would have no reason to kidnap the respondent as a means of coercing his father if not for the familial relationship; the leverage over the father derives entirely from his fear for the safety of his child. The protected characteristic of family is thus not merely incidental or tangential. It is one central reason for the persecution.
As noted above, under this standard, it doesn’t matter that the goal of selling drugs is the persecutor’s dominant motive; the hierarchy of reasons is irrelevant. As we have seen, the Board itself conceded this point in Matter of J-B-N- & S-M-. Nor does it matter that when the gang isn’t focused on selling drugs in the father’s store, it treats the members of the family the same as everyone else. Think of Bostock’s Yankees fan example, in which the fact that women as a group are treated equally to men by the employer until their offending Yankees loyalty is discovered, at which point only women who root for the Yankees are fired. The fact that both the employer’s hatred of the Yankees in the Bostock example and the gang’s desire to sell drugs in the father’s store in L-E-A- are central reasons doesn’t preclude other “but for” causes.
The Board Applied a “The Central Motive” Test in L-E-A-
However, the traditional standard was not what the Board actually applied to the facts of the case. Instead, it first claimed that “nexus would be established based on family membership where a persecutor is seeking to harm the family members because of an animus against the family itself.”38 In that example, the persecution is caused by the hatred of the family itself, without a need for any further reason. But that is an example of the family membership serving as “the central motive” for the harm.
The Board then went on in L-E-A- to address instances lacking such animus towards the family itself. But in doing so, the Board never mentioned the “but for” test described above. Instead, it made general statements from which it is difficult to discern a coherent test. In finally denying the claim on the ground that the cartel’s motive was financial, the Board continued to apply an incorrect “the central motive” standard.
Importantly, the Board in L-E-A- never undertook the required exercise of removing the protected ground to see if it would cause a different result. Instead, it concluded that because the motive was financial, the claim failed. In summary, the Board again recounted one standard, but then applied something entirely different. What the Board in fact applied was a “the central motive” test, in which the dominance of the financial motive eliminated all other reasons from consideration.
In spite of the clarity of the correct standard, the universality of its application, and the criticism from numerous circuit courts over the years for its failure to apply it correctly, the BIA has made no effort to correct its course in its application of the “on account of” standard. The Board remains consistent in its citing of something close to the correct standard, but then applying an entirely incorrect test. Whatever it claims to be doing, the Board’s test is for “the central motive,” in which nexus is denied whenever a dominant purpose may be identified that is not a statutorily protected ground for asylum. Congress specifically rejected this standard in favor of the more generous “at least one central reason” test. Furthermore, the “predicament approach” has never been mentioned, much less applied, by the Board, which has continued to focus on the persecutor’s motive as if Congress had not changed that word to “reason.”
There are many within the Department of Justice who must be aware of this practice. I would hope that Attorney General Garland, a longtime circuit court judge, is among them. In light of the BIA’s refusal to self-correct, it is incumbent on the Department to impose a correction from above. Otherwise, any forthcoming regulations relating to particular social group formulation will fail to have their desired impact on the outcomes of asylum claims.
Copyright Jeffrey S. Chase 2021. All rights reserved.
Thanks to Dr. Alicia Triche for providing invaluable insight that was incorporated into the final version of this article.
28 I&N Dec. 408 (BIA 2021).
8 U.S.C. § 1101(a)(42)(A).
My use of the term “Traditional” is based on the Supreme Court’s reference in Bostock cited below to the “traditional” “but-for” test in cases with a “because of” or “on account of” requirement.
140 S. Ct. 1731 (2020).
Id. at 1739. Although no further explanation regarding the equivalency of the terms was provided in Bostock, in a prior decision, the Court had stated: “The words ‘because of’ mean ‘by reason of: on account of.’ 1 Webster's Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining ‘because of’ to mean ‘By reason of, on account of ‘ (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining ‘because’ to mean ‘by reason; on account’).” Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009).
Id. The Court has applied this same test in other cases, including FBL Fin. Servs., Inc., supra, in which it also referenced the description of the test found in W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984) ("An act or omission is not regarded as a cause of an event if the particular event would have occurred without it”).
Id. at 1741.
Id. at 1742.
Deborah E. Anker, Law of Asylum in the United States (2021-2022 Ed.) (Thomson Reuters) at 409.
See James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd Ed.) (Cambridge) at 376.
Id. at 276-77.
Anker, supra at 390.
Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007).
Id. at 212, n.6.
Ndayshimiye v. Attorney General of U.S., 557 F.3d 124, 129-30 (3rd Cir., 2009).
See, e.g., Perez Vasquez v. Garland, 4 F.4th 213, 222 (4th Cir. 2021); Portillo Flores v. Garland, 3 F.4th 615, 630-31 (4th Cir. 2021) (en banc); Arita-Deras v. Wilkinson, 990 F.3d 350, 361 (4th Cir. 2021); Hernandez-Cartagena v. Barr, 977 F.3d 316, 322 (4th Cir. 2020); Zavaleta-Policiano v. Sessions, 873 F.3d 241, 249-50 (4th Cir. 2017); Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015).
Hernandez-Avalos v. Lynch, supra at 949 (emphasis added).
Id. at 950.
Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148 (11th Cir. 2019).
Id. at 1158-59.
Rodriguez Tornes v. Garland, 993 F.3d 743, 751 (9th Cir. 2021).
Ghanem v. Att’y Gen. of U.S., No. 19-1475 (3rd Cir. Sept. 22, 2021).
Matter of N-M-, 25 I&N Dec. 526, 531 (BIA 2011) (citing Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009)).
Matter of L-E-A-, 27 I&N Dec. 40, 43-44 (BIA 2017) (“L-E-A- I”).
Matter of A-B-, 28 I&N Dec. 199, 208 (A.G. 2021) (“A-B- II”).
See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (vacating both prior A.G. decisions in Matter of A-B-).
Acharya v. Holder, 761 F.3d 289, 298 (2d Cir. 2014).
The three earlier decisions cited in Acharya in which the BIA had committed the same error in applying a “the central reason” standard were Castro v. Holder, 597 F.3d 93 (2d Cir. 2010); Aliyev v. Mukasey, 549 F.3d 111 (2d Cir. 2008); and Uwais v. U.S. Att’y Gen., 478 F.3d 513 (2d Cir. 2007).
Perez Vasquez v. Garland, supra at 222.
Hernandez-Cartagena v. Barr, supra at 322 (citing Salgado-Sosa v. Sessions, 882 F.3d 451, 459 (4th Cir. 2018).
Matter of M-F-O-, supra at 412, n.6.
Matter of L-E-A-, supra at 46, n.3.
Id. at 43-44.
Bostock v. Clayton Country, supra at 1739.
Id. at 44."
Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals. He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award. Jeffrey is also a past recipient of AILA’s Pro Bono Award. He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.