Post-matter of A-b-, the Ninth Circuit Joins the First and Sixth Circuits in Finding Domestic Violence-based Asylum Claims Are Still Viable

POST-MATTER OF A-B-, THE NINTH CIRCUIT

JOINS THE FIRST AND SIXTH CIRCUITS IN

FINDING DOMESTIC VIOLENCE-BASED ASYLUM

CLAIMS ARE STILL VIABLE

MICHAEL KAREFF* AND JORGE ROMAN-ROMERO†

After the former U.S. Attorney General (“A.G.”) Jeff Sessions issued

Matter of A-B- in 2018, many immigration advocates were skeptical of the vi-

ability of domestic violence-based asylum claims.

1

Matter of A-B- contained

dicta that many immigration advocates worried would be interpreted as a cat-

egorical ban on domestic violence-based asylum claims.

2

However, since

2018, several circuits have rejected this reading of Matter of A-B-. Most

recently, the Ninth Circuit joined the First and Sixth Circuits in ruling that

Matter of A-B- heightens the burden of proof required for domestic violence

victims to claim asylum, but that domestic violence-based claims for asylum

are still legally cognizable.

3

To claim asylum in the United States, an asylum applicant must meet the

statutory def‌inition of a refugee under the Immigration and Nationality Act,

which in part requires that a person has been persecuted or fears they will be

persecuted in their country of origin on account of race, religion, nationality,

political opinion, or membership in a particular social group (“PSG”).

4

As

the protected PSGs are not def‌ined by statute, the Board of Immigration

Appeals (“BIA”) has developed and narrowed specif‌ic requirements to estab-

lish membership in a PSG over the past few decades.

5

Since the BIA’s

*Michael Kareff, J.D. Candidate, 2021, Georgetown University Law Center; B.A. Political Science

& Peace and Justice Studies, cum laude, 2015, Tufts University. © 2021, Michael Kareff & Jorge Roman-

Romero.

†Jorge Roman-Romero, J.D. & LL.M. Candidate in Energy and Natural Resources Law, 2021, The

University of Tulsa College of Law; M.A. in International Studies, University of San Francisco; B.A. in

Political Science & B.A. in History, magna cum laude, 2016, McNeese State University.

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

2. See e.g., Anne Weis, Fleeing for Their Lives: Domestic Violence Asylum and Matter of A-B-, 108

CAL. L. REV. 1319, 1350-51 (2020).

3. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1078 (9th Cir. 2020); Fuentes Reyes v. Barr, 816 F.

App’x 139, 140 (9th Cir. 2020); Arellano Rodriguez v. Barr, 816 F. App’x 137, 138 (9th Cir. 2020).

4.8 U.S.C.A. § 1101 (West 2014).

5. See, e.g., Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251–52 (B.I.A. 2014) (holding that “member-

ship in a particular social group” requires an applicant for asylum or withholding of removal to establish

that the group is (1) composed of members who share a common immutable characteristic, (2) def‌ined

with particularity, and (3) socially distinct within the society in question); Matter of Acosta, 19 I. & N.

Dec. 211, 212 (B.I.A. 1985) (holding that ‘persecution on account of membership in a particular social

group’ refers to persecution that is directed toward an individual who is a member of a group of persons

all of whom share a common, immutable characteristic).

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