New BIA Case on "Family" as a Particular Social Group for Asylum Persecution: Hatfields Versus McCoys?

Today’s decision from the BIA is a head-scratcher. In Matter of L-E-A-, the BIA examined the claim of a man who was persecuted because his father owned a grocery store. The persecutors were members of La Familia Michoacana, a criminal cartel in Mexico. The father refused them permission to sell drugs in his store. Cartel members then asked L-E-A- if he would sell drugs in the store for them, and he refused. The following week, the cartel attempted to kidnap him but he escaped and fled to the U.S. They contacted the father and claimed they were holding L-E-A-, but the father confirmed that this was untrue.

Asylum cases will only protect those fearing persecution motivated by five grounds: race, religion, nationality, membership in a particular social group (such as family), and political opinion. The BIA stated that the key issue was whether L-E-A-‘s harm happened because of his membership in his family. It would seem clear that the cartel approached and threatened him because he was related to his father, the storeowner whom they wished to control. The cartel even lied to the father that they had kidnapped his son—why involve the son unless they wanted to leverage and influence the father?

However, the BIA went in a different direction which actually seems to double-up the asylum grounds of protection. First it compared family persecution to the infamous case of Czar Nicholas II, whose family was executed after a political revolution in Russia. The BIA said this is a “classic example” of persecutors who intended to overcome the family. The BIA also looked at other successful claims for “family persecution,” which had motivation for political and/or ethnic reasons. These comparisons seem to suggest a double-layer of motivation: first target the family for a ground already protected by asylum law (political or ethnic reasons), and then see if this targeting extended to family members.

For L-E-A-, the BIA concluded that the cartel targeted him because “he was in a position to provide access to the store,” and to enrich them, and not because of his family membership. However, this seems nonsensical because his familial relations gave him access to the store; moreover, the cartel tried to leverage the father by claiming it kidnapped his son. The BIA required “animus against the family . . . based on their biological ties, historical status, or other features unique to that family unit.” I would argue that L-E-A-‘s family had a unique feature: ownership of a grocery store, and refusal to allow the cartel to conduct criminal acts at that store. Plus, what does “animus based on biological ties” even mean?

Today’s holding seems to require either a double layer of motivation already protected by asylum law, or some kind of Hatfields/McCoys longstanding personal dispute. If I were taking this case on appeal to the Circuit Courts, I would argue that this is an impermissible interpretation of the legal standard.

Matter of L-E-A-, 27 I&N Dec. 40, Interim Decis. #3893 (BIA 2017)