A Step Too Far: Matter of A-B-, 'Particular Social Group,' and Chevron

60 Pages Posted: 28 Jun 2019 Last revised: 4 Aug 2019

Date Written: July 15, 2019

Abstract

Every day, thousands of Central American asylum seekers, many fleeing persecution from domestic abusers and gangs, attempt to seek refuge in the United States. To receive asylum, those escaping such violence typically must show membership in a “particular social group.” In Matter of A-B-, issued in June 2018, then-Attorney General Jefferson B. Sessions III attempted to destroy the viability of domestic-violence-related particular social groups altogether. As we demonstrate in this Article, this far-reaching decision should not receive Chevron deference from reviewing courts.

A-B- is concerning both for its potentially calamitous effect on individuals fleeing domestic and gang violence and for the abrupt, unwarranted departure from established immigration law that it represents. As a result of A-B-, individuals, many of them women, are being subjected to both different and higher standards for certain aspects of their asylum claims and must “re-invent the wheel” of establishing that domestic violence can be a basis for asylum.

Federal courts reviewing immigration decisions apply the Chevron two-step framework, which requires a court to begin by using statutory interpretation to examine the meaning of the term at issue. In this Article, we provide a fresh analysis of “particular social group” through statutory construction, legislative history, and international context to find that there are some unambiguous parameters around the term. Then, advancing arguments under both steps of Chevron, we find that A-B- contradicts congressional intent, misinterprets precedent, and oversteps the discretionary authority afforded to the agency. Therefore, reviewing courts should not give A-B- deference.

Keywords: Immigration, Asylum, Domestic Violence, Particular Social Group, Chevron, Administrative Law, Deference, APA

Suggested Citation

Kelley-Widmer, Jaclyn and Rich, Hillary, A Step Too Far: Matter of A-B-, 'Particular Social Group,' and Chevron (July 15, 2019). Cornell Legal Studies Research Paper No. 19-30. Available at SSRN: https://ssrn.com/abstract=3410556 or http://dx.doi.org/10.2139/ssrn.3410556

Jaclyn Kelley-Widmer (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-9898 (Phone)

Hillary Rich

Texas RioGrande Legal Aid ( email )

1111 N Main Ave.
San Antonio, TX 78212
United States

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