Matter of A-B-: Sessions Declares Domestic- and Gang-Violence Asylum Claims Will 'Generally' Fail (2018)

What happened

On March 7, 2018, Attorney General Jeff Sessions used his power under 8 C.F.R. §1003.1(h) to take over a pending asylum case, that of a Salvadoran woman who said she was fleeing an abusive partner. He asked for briefing on "whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable 'particular social group'" for asylum.

On June 11, 2018 he decided Matter of A-B-, 27 I&N Dec. 316. He overruled the Board of Immigration Appeals' 2014 precedent Matter of A-R-C-G-, which had recognised married women in Guatemala unable to leave their relationships as a particular social group, saying it "was wrongly decided and should not have been issued as a precedential decision." The opinion stated: "Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum." It required applicants persecuted by private actors to show that their government "condoned the private actions or demonstrated an inability to protect the victims," and directed asylum officers, judges and the Board to consider whether the applicant could relocate within her own country.

USCIS then issued guidance applying these standards in "expedited removal" credible-fear screenings, the first-stage interviews at the border that decide whether someone can pursue an asylum claim at all. Twelve asylum seekers, represented by the ACLU, sued. In Grace v. Whitaker (D.D.C., signed December 17, 2018), Judge Emmet G. Sullivan held that, "with the exception of two policies, the new credible fear policies are arbitrary, capricious, and in violation of the immigration laws." He vacated them, permanently enjoined the government from applying them, and ordered it "to return to the United States the plaintiffs who were unlawfully deported" and give them new credible-fear determinations.

On July 17, 2020 the D.C. Circuit (Grace v. Barr, 965 F.3d 883) affirmed in part and reversed in part. It held the "condoned-or-completely-helpless" standard for private persecution arbitrary and capricious, because the government had not acknowledged or explained the change, and affirmed on the choice-of-law policy. But it reversed on the circularity rule and on the "generally will not qualify" statements: government counsel had told the court that "none of these groups are categorically barred," and the court found that "the record in this case does not support the asylum seekers' argument that USCIS and the Attorney General have erected a rule against asylum claims involving allegations of domestic and/or gang violence." Judge Henderson dissented.

On June 16, 2021 Attorney General Merrick Garland vacated A-B- and a 2021 follow-on decision "in their entirety," instructing immigration judges to follow pre-2018 precedent, including A-R-C-G- (28 I&N Dec. 307).

Legal analysis

Refugee law. The 1967 Protocol, to which the United States is a party, incorporates the 1951 Convention's refugee definition, including persecution "for reasons of ... membership of a particular social group," and its Article 33 bar on returning refugees to persecution. The definition does not require that the persecutor be the state; persecution by private actors the state is unable or unwilling to control is the long-standing test, which the 2021 vacatur restated. A general presumption against an entire category of claims, applied at the screening stage, risks returning people with valid claims before their facts are heard. That is the refoulement risk the courts' rulings addressed.

Element by element (as an IHRL violation).

• State act: met. A binding Attorney General precedent, applied by DHS.
• Affected protected interest: met. The right not to be returned to persecution or torture (Protocol Art. 33; CAT Art. 3; ICCPR Arts. 6–7).
• Unlawfulness: adjudicated in part. The district court held the credible-fear policies unlawful; the appellate court upheld that as to the "condoned-or-completely-helpless" standard and the choice-of-law policy, but not as to the "generally" statement, which it found was not shown to be a categorical rule.
• Concrete harm to identifiable people: reasonable basis, not quantified. The plaintiffs were individual asylum seekers screened out under the policies; the sources fetched do not give numbers removed or harmed after return.

Not an international crime. Deportation or forcible transfer under Rome Statute Article 7(1)(d) requires removal without grounds permitted under international law as part of a widespread or systematic attack on a civilian population. A restrictive asylum standard, later struck down by the state's own courts, is not shown to meet that contextual element.

Strongest defence argument. The Attorney General has statutory authority to decide immigration cases and set precedent, and "particular social group" is a contested legal category. The opinion said only that such claims would "generally" fail and left room for "exceptional circumstances." Its supporters said it restored rigour to an ambiguous category. The D.C. Circuit accepted part of this argument: it found no categorical rule against domestic- and gang-violence claims shown on the record. The argument is weakened by the rest of the result: the decision's heightened standard for private persecution was held arbitrary and capricious as applied at the credible-fear stage, and the decision was later vacated by the Justice Department itself.

Why this grade

Severe. The rubric's severe grade covers "punitive actions against asylum seekers or refugees in contravention of treaty obligations" causing substantial harm to identifiable populations. The decision narrowed the main legal route to protection for survivors of domestic and gang violence, was applied to screen people out at the border, and its heightened standard for private persecution was held unlawful in that application by both the district court and the D.C. Circuit; the district court found plaintiffs had been unlawfully deported. It is not graded critical because it was one precedent decision with a defined scope, later reversed, rather than a structural assault on the courts or on due process as a whole. No international crime is plausibly in play at the Article 53(1) level, so no evidence classification is assigned.