In re L-E-A, Interim Decision #3959
| Decision Date | 29 July 2019 |
| Docket Number | Interim Decision #3959 |
| Citation | 27 I&N Dec. 581 |
| Parties | Matter of L-E-A-, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) In Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), the Board of Immigration Appeals improperly recognized the respondent's father's immediate family as a "particular social group" for purposes of qualifying for asylum under the Immigration and Nationality Act.
(2) All asylum applicants seeking to establish membership in a "particular social group," including groups defined by family or kinship ties, must establish that the group is (1) composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question.
(3) While the Board has recognized certain clans and subclans as "particular social groups," most nuclear families are not inherently socially distinct and therefore do not qualify as "particular social groups."
(4) The portion of the Board's decision recognizing the respondent's proposed particular social group is overruled. See Matter of L-E-A-, 27 I&N Dec. at 42-43 (Part II.A). The rest of the Board's decision, including its analysis of the required nexus between alleged persecution and the alleged protected ground, is affirmed. See id. at 43-47 (Part II.B).
The Immigration and Nationality Act ("INA") authorizes the Attorney General to grant asylum, in his discretion, if an alien establishes that he is unable or unwilling to return to his country of origin because he has suffered past persecution or has a well-founded 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). This case once again requires interpretation of what it means to suffer persecution on account of "membership in a particular social group," an ambiguous term that has required repeated construction by the Board of Immigration Appeals (the "Board"), the Attorney General, and the U.S. Courts of Appeals.
The respondent contends that he was persecuted by a criminal gang on account of his membership in the "particular social group" defined as the "immediate family of his father," who owned a store targeted by a local drug cartel. Under existing Board precedent, a particular social group must share "a common immutable characteristic" that is defined with particularity and "set apart, or distinct, from other persons within the society in some significant way." Matter of M-E-V-G-, 26 I&N Dec. 227, 238 (BIA 2014); see also Matter of W-G-R-, 26 I&N Dec. 208, 217 (BIA 2014). The alien bears the burden of showing that his proposed group meets these criteria, see 8 U.S.C. § 1158(b)(1)(B)(i), and he will not satisfy that burden solely by showing that his social group has been the target of private criminal activity. The fact that a criminal group—such as a drug cartel, gang, or guerrilla force—targets a group of people does not, standing alone, transform those people into a particular social group. See, e.g., Matter of S-E-G-, 24 I&N Dec. 579, 586-87 (BIA 2008) (); Matter of Acosta, 19 I&N Dec. 211, 234 (BIA 1985) ().
At the same time, the Board has recognized that a clan or similar group bound together by common ancestry, cultural ties, or language may constitute a "particular social group." Matter of H-, 21 I&N Dec. 337, 343 (BIA 1996) (); Acosta, 19 I&N Dec. at 233 (). But what qualifies certain clans or kinship groups as particular social groups is not merely the genetic ties among the members. Rather, it is that those ties or other salient factors establish the kinship group, on its own terms, as a "recognized component of the society in question." W-G-R-, 26 I&N Dec. at 217. In that respect, the large and prominent kinship and clan groups that have been recognized by the Board as cognizable particular social groups stand on a very different footing from an alien's immediate family, which generally will not be distinct on a societal scale, whether or not it attracts the attention of criminals who seek to exploit that family relationship in the service of their crimes.
Consistent with these prior decisions, I conclude that an alien's family-based group will not constitute a particular social group unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor. See M-E-V-G-, 26 I&N Dec. at 237; W-G-R-, 26 I&N Dec. at 215-18. Because the record does not support the determination in this case that the immediate family of the respondent's father constituted a particular social group, I reverse the Board's conclusion to the contrary.
In 1998, the respondent, a Mexican citizen, illegally entered the United States. After a criminal conviction for driving under the influence, the Department of Homeland Security ("DHS") initiated removal proceedings. The respondent accepted voluntary departure and returned to Mexico in May 2011. But he did not stay there long. By August 2011, the respondent had again illegally returned to the United States. DHS apprehended him and commenced removal proceedings. The respondent conceded removability, but this time sought asylum based upon a claim of persecution allegedly suffered during his brief return to Mexico.
According to the respondent, upon returning to Mexico, he had gone to live with his parents in Mexico City. His father operated a neighborhood general store there, but he had run afoul of La Familia Michoacana, a Mexican drug cartel. Because his father refused to sell the cartel's drugs out of his store, the drug dealers evidently decided to retaliate against the respondent upon his return. About a week after returning to Mexico City, the respondent was walking a few blocks from his home when he heard gunshots coming out of a black sport-utility vehicle. He dropped down to the ground and was unharmed. Although the respondent did not initially believe that he was the target of the shooting, he later concluded that he was, based upon the cartel's subsequent actions.
About a week later, four armed cartel members, driving the same black sport-utility vehicle, approached the respondent and asked him to agree to sell the cartel's drugs at his father's store. When the respondent declined, the cartel members threatened him and advised him to reconsider. Shortly thereafter, four masked men, in the same sport-utility vehicle, attempted to kidnap the respondent, but he managed to escape. After that incident, the respondent left Mexico City for Tijuana, where two months later, he illegally crossed back into the United States and was thereafter apprehended.
In his removal proceeding, the respondent claimed persecution in Mexico based on his membership in the particular social group comprising his father's immediate family. The immigration judge denied relief on the ground that the respondent had not shown he was the victim of anything more than criminal activity.
On appeal, the Board found that the respondent's relationship with his father established membership in a particular social group, namely "his father's immediate family." Matter of L-E-A-, 27 I&N Dec. 40, 43 (BIA 2017). In reaching that conclusion, the Board relied upon DHS's concession "that the immediate family unit of the respondent's father qualifies as a cognizable social group." Id. at 42; see also DHS Supplemental Brief at 20("In this case, the Department stipulates that the immediate family unit of the respondent's father qualifies as a cognizable particular social group."). The Board recognized that, under the relevant precedents, a family-related group must satisfy the requirements of particularity and social distinction to qualify as a "particular social group" under the INA. L-E-A-, 27 I&N Dec. at 42. And the Board noted that such a determination requires "a fact-based inquiry made on a case-by-case basis," and will not be satisfied by "all social groups that involve family members." Id. at 42-43. But the Board did not perform such an inquiry; instead, it summarily concluded that "[i]n consideration of the facts of this case and the agreement of the parties, we have no difficulty identifying the respondent, a son residing in his father's home, as being a member of the particular social group comprised of his father's immediate family." Id. (emphasis added).
Although it approved the claimed social group, the Board denied the respondent's asylum application because of the absence of the necessary nexus between his membership in the group and the persecution. Id. at 43-47. The Board explained that "[a] persecution claim cannot be established if there is no proof that the applicant or other members of the family were targeted because of the family relationship." Id. at 43. Here, the Board concluded, the respondent was approached by the cartel "because he was in a position to provide access to the store, not because of his family membership." Id. at 46. He "was targeted only as a means to achieve the cartel's objective to increase its profits by selling drugs in the store owned by his father," and "[a]ny motive to harm the respondent because he was a member of his family was, at most,...
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