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According to Attorney General Garland:

The President recently issued an executive order directing the Attorney General and the Secretary of Homeland Security to promulgate regulations “addressing the circumstances in which a person should be considered a member of a ‘particular social group.’” Exec. Order No. 14010, § 4(c)(ii), 86 Fed. Reg. 8267, 8271 (Feb. 2, 2021).

See Matter of A-B-, 28 I&N Dec. 307, at 308 (A.G. 2021) and Matter of L-E-A- 28 I&N Dec. 304, at 304, 305 (A.G. 2021).

Apparently, Attorney General Garland chose to abandon the clarity with which the previous administration interpreted the meaning of “particular social group” hoping for more and, perhaps, dissimilar clarity to be supplied by future regulations.

Some readers might recall that the same approach was taken by the late Attorney General Janet Reno during the Clinton administration regarding Matter of R-A-, 22 I&N Dec. 906 (BIA 1999, A.G. 2001).  Unfortunately, clarifying regulations regarding the particular social group at issue in Matter of R-A-, have not yet been promulgated.

Immigration practitioners, lawyers and judges can only trust that the observation of the 17th century British statesman, George Savile, 1st Marquess of Halifax, does not apply.  Savile’s observation is that “Hope is generally a wrong guide, though it is very good company by the way.”

In short, the vacation of Matter of A-B- I,  Matter of A-B- II and Matter of L-E-A- II in one sense takes the immigration law legal community back to the future.  The above cited vacated cases no longer serve as precedent decisions.  This means that Immigration Judges, as of June 16, 2021, must decide issues relating to the definition of “particular social group” on a case by case basis based on current law and regulation and precedent court decisions that existed before the above cited cases were published. 

To be specific, decision makers will encounter fewer precedent case law constraints when deciding whether or not a nuclear family and groups such as “married women in Guatemala who are unable to leave their relationship” and “El Salvadoran women who are unable to leave their domestic relationships where they have children in common with their partners” are recognizable as a particular social group. 

In particular, Attorney General Garland, as of June 16, 2021, ordered that “pending forthcoming rulemaking, immigration judges and the Board should follow pre-A-B- I precedent, including Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)." 

In Matter of A-R-C-G-, the DHS conceded that the respondent established harm rising to the level of past persecution on account of a particular social group comprised of “married women in Guatemala who are unable to leave their relationship.” Matter of A-R-C-G-, at 392.  Based in part on the DHS concession, the BIA held that:

Depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act . . . [emphasis added]

Practitioners should keep in mind that recognition of a particular social group still depends on “the facts and evidence in an individual case,” and the BIA recognition of the particular social group in Matter of A-R-C-G- was, in part, based on the DHS concession.

In addition, application of the standard for determining whether a government is "unwilling or unable" to prevent persecution by non-governmental actors and whether a government that makes efforts to stop the harm in third-party persecution cases is "unable" to prevent persecution by private actors will not necessarily be interchangeable with "complete helplessness."

Asylum seekers and immigration practitioners, however, should beware.  Vacating a precedent decision falls short of affirmatively overriding the underlying legal rationales and conclusions of the vacated precedent decision and substituting new legal rationales and conclusions. 

Nothing prevents a decision maker from finding the legal rationales and conclusions of vacated precedent decisions persuasive in whole or in part, even though they are no longer precedential; just like unpublished decisions.

Moreover, the Fifth Circuit Court of Appeal has held that A-B- I did not change any policy relating to asylum and withholding claims, rejecting the argument that A-B- I constituted an arbitrary and capricious change in policy.  Gonzales-Veliz v. Barr, 938 F.3d 219, at 227, 234 (5th Cir. 2019).

Finally, the challenge of establishing a nexus between the motivation of the alleged persecutor and the alleged particular social group will not go away.  See INS v. Zacarias, 570 U.S. 478 (1992).

The constraints imposed by vacated previous precedent decisions have been loosened, but the danger of the reasoning that supported the vacated decisions still lurks in the environment of persecution based claims in immigration court.