Vanita Gupta, the Associate Attorney General for the U.S. Department of Justice, issued a Memorandum for the Civil Division on June 16, 2021, which detailed U.S. Attorney General Merrick Garland’s action to vacate three Attorney General decisions. These decisions include: • Matter of L-E-A- (L.E.A. II) • Matter of A-B- (A-B I) • Matter of A-B (A-B– II) These decisions collectively interpreted federal asylum law to severely restrict asylum based on those individuals who have fled their home countries based on persecution on account of membership in a particular social group. The former Attorney General more strictly defined in each decision when a family qualified as a “particular social group.” For instance, in Matter of A-B- I, the former Attorney General determined that “victims of private criminal activity,” such as victims of domestic violence or gang violence, would not qualify for asylum in most cases, absent “exceptional circumstances.”
Garland’s Restoration of Preexisting Asylum Law
These decisions were a departure from the Board of Immigration Appeals (BIA) precedent in many respects. As a result of the impact of these decisions, Attorney General Garland has opted to return to the interpretation of asylum law as existed before these decisions in 2018, 2019, and 2021. This status will remain in effect pending the joint rulemaking process by the Justice Department and the U.S. Department of Homeland Security (DHS), which will require full public comment before any rule changes go into effect. The goal is to issue a final rule that clearly defines “particular social group” and whether victims of domestic violence, victims of gang violence, and a nuclear family can constitute a particular social group.
Further Guidance to the Office of Immigration Litigation
Gupta’s memorandum goes on to instruct the Office of Immigration Litigation, which is responsible for defending BIA decisions in federal court, for reviewing any pending cases impacted by these decisions being vacated, and for taking any appropriate steps. For example, it may be appropriate to remand some cases to the BIA to reconsider asylum claims in light of the return to preexisting law.
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