Marta Lidin Tista-Ruiz de Ajualip, et al. v. Merrick B. Garland

Brentwood, Tennessee immigration law lawyer represented Petitioners seek asylum in the United States.

Applicant Marta Lidia Tista-Ruiz De Ajualip is a native citizen of Guatemala who applied for asylum and withholding of removal for herself and on behalf of her three children and grandson,[1] all of whom entered the United States on March 5, 2016.[2] Marta's family left Guatemala because they were afraid that Marta's son-in-law, Marvin, would act on his threats to kill them.



After initiating removal proceedings and holding an administrative hearing in 2016, an immigration judge (IJ) found that Marta and her family were subjected to persecution as defined in the Immigration and Nationality Act (INA), but the IJ denied Marta's asylum and withholding claims for other reasons. In making her asylum determination, the IJ relied on previously applicable immigration precedent to declare that victims of domestic violence are not protected by the asylum laws of the United States. And when analyzing Marta's withholding claim, the IJ applied the wrong legal standard and premised her denial on a separate, inapplicable immigration statute.



In March 2023, the Board of Immigration Appeals (Board) issued an opinion affirming both points. The Board issued a separate opinion on the asylum claim that acknowledged a significant change in precedent since the IJ's decision, but the Board affirmed instead of remanding for further review. The Board summarily affirmed the denial of Marta's withholding claim. Because the Board's denial of asylum and withholding of removal is inconsistent with this court's precedent and other immigration authority, we grant Marta's petition for review and remand for further proceedings.



Cite as 28 I&N Dec. 307 (A.G. 2021) Interim Decision #4019

307



Matter of A-B-, Respondent



Decided by Attorney General June 16, 2021



U.S. Department of Justice



Office of the Attorney General



(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) ("A-B- I”), and Matter of A-B-, 28 I&N

Dec. 199 (A.G. 2021) ("A-B- II”), are vacated in their entirety.



(2) Immigration judges and the Board should no longer follow A-B- I or A-B- II when

adjudicating pending or future cases. Instead, pending forthcoming rulemaking,

immigration judges and the Board should follow pre-A-B- I precedent, including Matter

of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).



BEFORE THE ATTORNEY GENERAL



Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration

Appeals ("Board”) to refer this case to me for my review. With the case thus

referred, I hereby vacate Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)

("A-B- I”), and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) ("A-B- II”).



Under the Immigration and Nationality Act ("INA”), the Attorney

General may grant asylum to individuals who meet several statutory

requirements, including that they have suffered or fear (1) "persecution,”

(2) "on account of,” (3) their "race, religion, nationality, membership in a

particular social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C.

§ 1101(a)(42)(A); see INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). 1

Persecution is inflicted "on account of” a protected characteristic if that

characteristic is "at least one central reason” for the persecution. INA

§ 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i); see Matter of W-G-R-,

26 I&N Dec. 208, 223–24 (BIA 2014). The Board has long held that harm

may qualify as "persecution” if it is inflicted either by a government or by

non-governmental actors that the relevant government is "unable or

unwilling to control.” Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).

In A-B- I, Attorney General Sessions reviewed an unpublished decision

of the Board concerning the asylum eligibility of an applicant claiming

persecution based on her membership in a particular social group of

"'El Salvadoran women who are unable to leave their domestic relationships

where they have children in common' with their partners.” 27 I&N Dec.



1 The "membership in a particular social group” standard also appears in the statutory

provision that governs withholding of removal. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).

Cite as 28 I&N Dec. 307 (A.G. 2021) Interim Decision #4019

308 at 321. The Board had found that this group was substantially similar to

"'married women in Guatemala who are unable to leave their relationship,'”

which the Board had recognized as a particular social group in Matter of

A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). A-B- I, 27 I&N Dec. at 321

(quoting A-R-C-G-, 26 I&N Dec. at 390). In A-B- I, Attorney General

Sessions overruled A-R-C-G-. Id. at 346. Having done so, he vacated the

Board's decision and remanded the case to the immigration judge. Id. In

A-B- II, Acting Attorney General Rosen reviewed a subsequent Board

decision in the same case "to provide additional guidance” on recurring

issues in asylum cases involving "applicants who claim persecution by

non-governmental actors on account of the applicant's membership in a

particular social group.” A-B- II, 28 I&N Dec. at 200.



The President recently issued an executive order directing the Attorney

General and the Secretary of Homeland Security to promulgate regulations

"addressing the circumstances in which a person should be considered a

member of a 'particular social group.'” Exec. Order No. 14010, § 4(c)(ii),

86 Fed. Reg. 8267, 8271 (Feb. 2, 2021). Rulemaking enables "thorough

consideration of the issues involved” in complex questions of immigration

law. Matter of Compean, 25 I&N Dec. 1, 2 (A.G. 2009). Among other things,

it "affords all interested parties a full and fair opportunity to participate and

ensures that the relevant facts and analysis are collected and evaluated.” Id.

at 2. My predecessors thus sometimes have vacated Attorney General or

Board opinions in light of pending or future rulemakings. Id.; see Matter of

R-A-, 22 I&N Dec. 906, 906 (BIA 1999, A.G. 2001).2



I have concluded that the same approach is warranted here, and I vacate

A-B- I and A-B- II to leave open the questions that those opinions sought to

resolve and to ensure that the Departments have appropriate flexibility in the

forthcoming rulemaking. A-B- I attempted to set forth a comprehensive

statement of the requirements that must be met to establish that an applicant

has suffered persecution on account of membership in a particular social

group—the very questions that the recent Executive Order directs the

Department of Justice and the Department of Homeland Security to address

in the rulemaking. Portions of the discussion in A-B- I were framed as a

restatement and application of existing Board precedent. But the opinion

begins with a broad statement that "victims of private criminal activity” will

not qualify for asylum except perhaps in "exceptional circumstances.”

2 Of course, agencies also have discretion to "announc[e] new principles in an

adjudicative proceeding” rather than a rulemaking. NLRB v. Bell Aerospace Co., 416 U.S.

267, 294 (1974). This ability to set policy in a case-by-case fashion allows an agency to

"'develop[]'” principles over time as it gains "'experience with a particular problem,'” and

also for the agency to "'adjust[]'” those principles "'to meet particular, unforeseeable

situations.'” Id. at 293 (quoting SEC v. Chenery Corp., 332 U.S. 194, 202 (1947)).

Cite as 28 I&N Dec. 307 (A.G. 2021

For the reasons stated, we grant Marta's petition for review, vacate the Board's denial of her applications for asylum and withholding of removal, and remand to the Board for reconsideration consistent with this opinion.