June 5, 2020
Domestic Violence Asylum Claim and Family As a Social Group Asylum Claim
If you filed a domestic violence type asylum claim before June 11, 2018 or a family as a social group before February 20, 2019, we have a retroactivity argument you can make in court.
Retroactivity Argument Regarding Matter of A-B (domestic violence type asylum) & Matter of L-E-A (Family as a social group type asylum).
Before several cases were published under the Trump Administration asylum cases based on social groups of domestic violence (unable to leave a relationship) and the social group of family, were widely accepted by USCIS and the Immigration Courts. The Trump Administration did away with most of these claims for asylum by pulling cases from the Board of Immigration Appeals or an Immigration Judge and changed case law precedent. We are now including in certain cases a retroactivity argument that argues that it’s unfair to use new precedent on cases filed under the old law. The argument is legal in nature.
The retroactive application of Matter of L-E-A- and Matter of A-B- would unjustly hinder the applicant’s claim in regards to private violence based PSGs. Respondent filed her application four years prior to the change in case law and she should not be penalized for having to wait four years for her court date. Further, respondent’s case should not be analyzed under the legal standard not applicable at the time of filing.
Retroactivity of agency rules are generally acceptable if “…balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles. If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by law.” The Ninth Circuit has held agencies “…may act through adjudication to clarify an uncertain area of the law, so long as the retroactive impact of the clarification is not excessive or unwarranted.” In reviewing the retroactive application of agency law, courts should consider (1) whether the particular case is one of first impression; (2) whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law; (3) the extent to which the party against whom the new rule is applied relied on the former rule; (4) the degree of the burden which a retroactive order imposes on a party; and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard. Questions of retroactivity have two events: the trigger and the change of law.
The retroactive trigger event was Respondent’s application for asylum, filed in 2014. At the time of filing, Matter of A-R-C-G- was the controlling law for private violence based PSGs. The first change of law occurred on June 11, 2018 when the former Attorney General (herein AG) Jeff Sessions released Matter of A-B-. Matter of A-B- attempts to overrule private violence based PSGs without creating a new legal standard; rather, the opinion expresses doubt on the legal reasoning of private violence claims without providing a new rule. The second change of law occurred on July 29, 2019, when Attorney General William Barr released Matter of L-E-A-. The holding in Matter of L-E-A- is extremely narrow and limited to rejecting Mr. L-E-A-’s proposed PSG. AG Barr stated the BIA relied on concessions by the Department of Human services in Mr. L-E-A-’s PSG, rather than a fact-based analysis. Matter of A-B and Matter of L-E-A use dicta to arbitrarily challenge domestic violence and family based PSG claims through an incorrect application of the law.
Prior to Matter of L-E-A-, the controlling law for the domestic violence PSG was Matter of A-B-. Although similarly narrow and comprised mainly of dicta, Matter of A-B- limited a domestic violence victim’s ability to obtain asylum, which was previously controlled by Matter of A-R-C-G-, by requiring asylum seekers to show that their home government failed to stop the harm suffered as a result of private actors. AG Barr acknowledged that his opinion in Matter of L-E-A- is proceeded by several U.S. court of appeals opinions, recognizing domestic violence and family-based PSG’s. AG Barr, rather than explaining Matter of L-E-A-’s departure from established precedent, states that the aforementioned courts made their decisions based on outdated dicta. However, AG Barr’s characterization is incorrect.
The Ninth Circuit has rejected applying BIA decisions retroactively. In Garcia-Martinez v. Sessions, the court did not retroactively apply the BIA’S application of theft against crimes involving moral turpitude because the balance of retroactivity factors weighed heavily in the foreign national’s favor. Thus, in the case at bar, the court should reject retroactive application of Matter of A-B- and Matter of L-E-A- as the retroactivity factors favor respondent. While the BIA can change rules through adjudicatory functions, the interests of the change must be balanced against: (1) whether the particular case is one of first impression; (2) whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law; (3) the extent to which the party against whom the new rule is applied relied on the former rule; (4) the degree of the burden which a retroactive order imposes on a party; and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.
The first factor questions whether the case at bar is of first impression. Respondent’s case is not a case of first impression. Asylum cases and PSGs are an extremely large cannon of law and provide an avenue for refugees to seek freedom from persecution. The PSG was first interpreted by Matter of Acosta in 1985 and the ninth circuit has continuously reviewed the application of the PSG ever since.
The second factor questions whether the new rule represents an abrupt departure from well-established practice, or merely attempts to fill a void in an unsettled area of law. Here, Matter of A-B- and Matter of L-E-A- represent a recent departure from well-established practice. Family claims have been recognized as a PSG since Matter of Acosta. Matter of Acosta was the standard until 2006, when the BIA began to place limits on family based PSG’s. In Matter of C-A-, the BIA recognized visibility as an element of social groups. Matter of W-G-R- and Matter of M-E-V-G-changed social visibility to social distinction, requiring that a group be recognized as a group by society. However, Matter of A-R-C-G- unequivocally held that victims fleeing from domestic violence are part of a specific family based PSG. Since 2014, the BIA had not limited domestic violence based PSGs.
The Ninth Circuit has recognized family based PSGs. In Sanchez-Trujillo v. I.N.S., the court held that the family unit is a prototypical example of a PSG. In Rios v. Lynch, the court held that the family is a PSG under the new social distinction standard under Matter of M-E-V-G-. Matter of A-B- and Matter of L-E-A- are a departure from the well-established practice of recognizing family based PSG’s, specifically for domestic violence victims. Through dicta, Matter of A-B- and Matter of L-E-A- arbitrarily restrict the social distinction prong of the PSG analysis to prevent domestic violence victims from being recognized as a valid PSG.
The third factor is the extent to which the party relied on the former rule. Respondent first applied for asylum in 2014, after Matter of A-R-C-G- was decided. Respondent heavily relied on the former rule in her initial claim since it was the controlling law at the time and the majority of her claim was based on this standard when she filed her application.
The fourth factor addresses the degree of the burden which a retroactive order imposes on a party. Here, the retroactive burden that Matter of A-B- and Matter of L-E-A- impose on Respondent is punitive. Each decision used dicta to drastically limit domestic violence PSGs such as those proffered by respondent. In particular, limitations to PSG social distinction created a new burden to Respondent’s claim that is almost impossible to overcome.
Matter of A-B- overrules Matter of A-R-C-G-’s recognition of private harms as a basis for asylum relief, which controlled asylum law for four years. The language within Matter of L-E-A- attempts to create a super heightened family based social distinction, akin to celebrity status among one’s community, which is a categorically incorrect application of the law. Matter of A-B- and Matter of L-E-A- place an unfeasible high burden on Respondent because one of her PSG’s is based on private harm and both opinions went against well-established precedent to limit application of family based PSGs.
The fifth factor is the statutory interest in applying a new rule despite the reliance of a party on the old standard. When applying this factor, the court questions whether there is a compelling interest in the removal of individuals for reasoning or conduct which may not apply to the case at bar. Here, there is no statutory interest in applying the new rule. Matter of A-B- goes against well-established precedent for victims of private violence within the home to constitute as a PSG. Matter of L-E-A- is convoluted and an incorrect application of family based PSGs. The narrow opinions in Matter of A-B- and Matter of L-E-A- distribute harmful dicta to unfairly restrict legitimate claims of asylum. The court should not apply Matter of A-B- or Matter of L-E-A- retroactively. Under the weighed factors, retroactive application of Matter of A-B- and Matter of L-E-A- should be rejected.
Please contact us with questions about asylum or your immigration needs at (866) 521-6422. We keep up with current case law and make the best legal arguments in court. Making a record and legal arguments is important to help win your asylum claim–whether it’s at the lower Immigration Court or at the Appeals Court. With over 20 years of experience and thousands of cases processed, we have the experience it takes and we give you an honest evaluation of your case.