By Edith Lerner
Associate Editor, Vol. 25
About one year ago, our editor Samantha Kulhanek wrote a blog post called How Jeff Sessions is Quietly Transforming Immigration Law to Promote His Anti-Immigrant Agenda. In it, she describes a growing trend during Session’s tenure as head of the Department of Justice, in which more immigration cases were being plucked from the immigration courts to be decided personally by the Attorney General (A.G.). Many of the decisions issued by Jeff Sessions worked to effectively remove control from immigration judges, and limit the procedural choices previously available to them for docket management. Among the cases he decided, Matter of A-B- stands out as particularly significant; with A-B-, Sessions attempted to severely narrow asylum eligibility for survivors of domestic violence and gang violence.
Sessions’ anti-immigrant agenda was paralleled by his mass-incarceration agenda and underscored by allegations of racism spanning his entire career. However, attempts to use the A.G.’s case referral power to limit relief for asylum seekers did not end when Sessions left office. Indeed, in the past year and under A.G. William Barr, it has only increased. In the three years since Trump took office, Attorneys General have used their power to intervene in immigration cases nine times. During Obama’s eight years in office, his Attorneys General only intervened on four.
In Matter of L-E-A, a case that A.G. Barr referred for review, Barr made another sweeping decision that, depending on how it is applied, could impact asylum eligibility for thousands of people.
To understand the significance of Matter of L-E-A, I will start by summarizing the prior state of family-based asylum claims. I will then discuss the language of Attorney General Barr’s decision and the consequences it could have for the future of family-based asylum claims.
Applicants seeking asylum in the United States may do so based on past harm or a well-founded fear of future persecution by a government actor or a private actor who the government is unwilling or unable to control. The alleged past harm or fear of future persecution must be based on one of five grounds: the applicant’s race, religion, nationality, political opinion, or membership in a particular social group. This last category has been developed over time to capture groups of people who frequently face persecution but who Congress did not have in mind when the Immigration and Nationality Act (“INA”) was drafted. Over time, these groups have included LGBTQ people, victims of domestic violence, and victims of gang violence, among many others.
The precise meaning of the term “particular social group” was developed over time through caselaw as a group that shares (1) a common immutable characteristic, (2) that is defined with particularity, and (3) that is socially distinct within society. Advocates have used this framework to file successful asylum claims for survivors of domestic violence based on the persecution of married women in certain countries. Matter of A-B- overruled precedent that held that “married women in Guatemala who are unable to leave their relationship” constitutes a valid particular social group. It went on to specifically limit claims from survivors of domestic violence and gang violence by holding that “the mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.” The opinion attacked past claims for those populations by asserting that “to be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.”
Another important use of the particular social group framework has been to file asylum claims for family members of individuals who have been targeted by gangs. In countries such as Guatemala, El Salvador, and Honduras, the family members of people who are targeted by gangs, either because they are business owners, witnesses to crimes, or targeted for recruitment, are also at risk.
Before A.G. Barr got involved, the decision in Matter of L-E-A by the Board of Immigration Appeals (“BIA”) provided an excellent example of this use of the family-as-social-group framework. The respondent in L-E-A sought asylum in the United States from Mexico after being threatened and nearly kidnapped by drug cartel members who wanted his father to sell drugs out of his grocery store. The Board of Immigration Appeals (“BIA”) denied his case for another reason, but wrote, “We agree with the parties that the members of an immediate family may constitute a particular social group. We have long recognized that family ties may meet the requirements of a particular social group depending on the facts and circumstances in the case.”
Taking aim at this part of the BIA’s opinion, A.G. Barr referred the case to himself and issued his own decision and opinion in Matter of L-E-A.
The broad dicta in L-E-A is the most devastating portion of the opinion. In his decision, Barr restates much of the existing framework for family-based asylum claims, but he denies L-E-A’s claim, stating that “nuclear family groups are not inherently socially distinct.” To be socially distinct, a group must be recognizable by society at large, not just by the persecutor. For nearly 30 years, courts have had no problem seeing families as socially distinct given their appearances and kinship ties. But Barr took the opportunity to state that “unless an immediate family carries greater societal import, it is unlikely that a proposed family-based group will be ‘distinct’ in the way required by the INA for purposes of asylum.”
Aside from intentionally and unnecessarily clawing away a huge, established part of asylum eligibility for vulnerable people, the lengthy dicta is imbued with language that seems to value wealth, fame, and political connection, while minimizing the plight of the so-called “average” family. In countries with the highest rates of gang violence, so-called “average” families are at no less risk of persecution, and are no less deserving of protection in the United States. Following the decision, The American Immigration Lawyers Association Vice President Jeremy Mckinney said in a statement that “the AG’s office further attempts to restrict asylum by targeting a new category of asylum seekers: families. This will cause irreparable harm. We know that these are some of the most vulnerable of asylum seekers as parents flee with their children in order to protect them from persecution.” Barr’s focus on “families of societal import” mirrors the administration’s attempts to curtail family-based and humanitarian immigration while keeping pathways open for affluent immigrants.
Here is a silver lining: Barr’s opinion in L-E-A, although containing very broad dicta concerning the stringency of family-based immigration claims, has a very narrow holding limited to L-E-A’s circumstances. The strategy for applying L-E-A mirrors that of applying Matter of A-B-, calling for case-by-case analysis of the particular social groups.It is unclear how Matter of L-E-A will impact the future of family-based asylum claims, but advocates predict an uphill battle of litigation and lobbying to Congress to restore the immigration laws that the Trump Administration has rewritten.
 Samantha Kulhanek, How Jeff Sessions is Quietly Transforming Immigration Law to Promote his Anti-Immigrant Agenda, Michigan Journal of Race and Law Blog (Nov. 6, 2018), https://mjrl.org/2018/11/06/how-jeff-sessions-is-quietly-transforming-immigration-law-to-promote-his-anti-immigrant-agenda/
 See, e.g., Id.; Matter of Castro-Tum, 27 I&N Dec. 271, 272 (A.G. 2018); Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018).
 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
 David M. Shapiro, Opinion, No Denying: Sessions’ Moves Revive Allegations of Racism, Chi. Trib. (May 15, 2017, 5:37pm), https://www.chicagotribune.com/opinion/commentary/ct-perspec-sessions-0516-20170515-story.html
 Reade Levinson and Ally J. Levine, How Trumps Attorneys General are Transforming U.S. Immigration Law, Reuters Graphics, (updated Jul 29, 2019), https://graphics.reuters.com/USA-IMMIGRATION-TRUMP/010091HF26W/index.html
 Matter of L-E-A, 27 I&N Dec. 581 (A.G. 2019); Natalie Nanasi, Opinion, A.G. Barr Ruling Puts Asylum Seekers at Deadly Risk, The Hill (Jul. 31, 2019, 2:00pm), https://thehill.com/opinion/judiciary/455565-ag-barr-ruling-puts-asylum-seekers-at-deadly-risk
 Matter of M-E-V-G-, 26 I&N Dec. 227, 234–44; 8 U.S.C. §§ 1101(a)(42)(A).
 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A), (B)(i).
 See, e.g., Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).
 Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985); M-E-V-G-, 26 I&N Dec. at 234–44.
 See, e.g., A-R-C-G-, 26 I&N Dec. 388.
 Id.; 27 I&N Dec. 316.
 Id. at 320.
 Id. at 334 (citing 26 I&N Dec. at 236 n.11).
 See, e.g. Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015).
 From author’s personal experience working with asylum seekers at the family detention center in Dilley, Texas, a vast number of the mothers I met had fled their home countries with their minor children because they had received threats by gang members on their children’s lives instead of theirs.
 27 I&N Dec. 581.
 Matter of L-E-A-, 27 I&N Dec. 40, 42 (BIA 2017).
 27 I&N Dec. at 589.
 See W-G-R-, 26 I&N Dec. 208, 217 (BIA 2014).
 19 I&N Dec. at 233.
 27 I&N Dec. at 595.
 Aaron Reichlin-Melnick (@ReichlinMelnick), Twitter, (Jul 29, 2019, 9:24am), https://twitter.com/ReichlinMelnick/status/1155876643593949186
 AILA Doc. No. 19072905
 Matter of A-B- overruled Matter of A-R-C-G- but did not go so far as to hold that no domestic-violence based claim would ever be cognizable. 27 I&N Dec. 316 (A.G. 2018).
 Practice Pointer, Matter of L-E-A-, The Catholic Legal Immigration Network, Inc. (CLINIC), (August 2, 2019), https://cliniclegal.org/sites/default/files/resources/defending-vulnerable-popluations/Litigation/L-E-A-Practice-Pointer-8-2-2019-Final.pdf