The Trump administration changed the law in 2018 to deny asylum for victims of domestic violence. Attorney General Sessions changed the definition of persecution to deny asylum for victims of private actions. Attorney General Sessions had overruled Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014). Attorney General Sessions had reviewed an unpublished Board decision and concluded that harm by private actors may not qualify as persecution. Acting Attorney General Rosen reviewed a subsequent decision in the same case and reached the same opinion.
Attorney-General Garland, under his authority in the Immigration& Naturalization Act, reviewed both A-B- I and A-B-II and concluded that the cases should be vacated pending review. Attorney General reasoned that since A-B-I began with the statement that victims of private actions qualify for asylum only “in exceptional circumstances”, it created a presumption that victims of private actions may not qualify for asylum. The Attorney General determined that such language creates confusion and discouraged case-by-case determinations by immigration judges.
Another problem with A-B-I according to Garland was the confusion regarding the unable and unwilling language in the cases. Under asylum law, persecution by private actors does not qualify unless the applicant shows that the government is unable or unwilling to stop conduct by private actors. Garland stated in the case that A-B-II tried to deal with these issues but failed because of the lack of private input. Attorney-General Garland concluded that the cases should be vacated pending the review ordered by President Biden of all immigration changes by the Trump Administration.
I have raised similar issues in my discussion of both A-B-I and A-B-II. The lack of clear language in the cases coupled with the lack of public input makes Attorney General Garland’s decision to vacate both the right decision.