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Acting Attorney General issues a second Matter of A-B- to provide "additional guidance" on asylum

  1. Date Announced

    Jan. 14, 2021

    The Acting Attorney General certifies to himself the last iteration of Matter A-B- decided by the BIA, vacates that decision, and issues a new precedent. Matter of A-B- II asserts that several courts of appeal have upheld the previous A.G. precedent "as reasonable and within the Attorney General's discretion" but that additional guidance is needed on three issues: (1) the standard for determining whether a government can be deemed "unwilling or unable" to prevent persecution by non-governmental actors; (2) whether a government that makes efforts to stop the harm in third-party persecution cases is "unable or unwilling" to prevent persecution; and (3) whether a protected ground must be more than a but-for cause in order to be at least "one central reason" for the persecution.

    For the first two issues, the decision appears to be a selective restatement of circuit court law that is compatible with Matter of A-B- I. For the third issue, the decision takes issue with the 4th Circuit's view of particular social group, which is broader and conflicts with Matter of L-E-A-.

    The decision recognizes that certain circuit law may conflict with this new decision, but explains that those circuit court decisions were made without the benefit of the "clear and controlling interpretation" that Matter of A-B- II provides. The decision invokes Chevron deference to its interpretation of the statutory language at issue, signaling to EOIR judges to apply Matter of A-B- II over applicable circuit precedent.

    [ID #1289]

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  2. Effective Date of Change

    Jan. 14, 2021

Commentary

The "Complete Helplessness" of Matter of A-B- and One More Last Ditch Effort to Torpedo Asylum

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