R-A

Cite as 

 (A.G. 2008)                              Interim Decision #3624




                         Matter of R-A-, Respondent
               Decided by Attorney General September 25, 2008

                           U.S. Department of Justice
                          Office of the Attorney General


  The Attorney General lifted the stay previously imposed on the Board of Immigration
Appeals and remanded the case for reconsideration of the issues presented with respect to
asylum claims based on domestic violence.

FOR RESPONDENT: Karen Musalo, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Gus P. Coldebella, Acting
General Counsel


                  BEFORE THE ATTORNEY GENERAL
                               (September 25, 2008)

   On January 19, 2001, Attorney General Reno vacated the decision of the
Board of Immigration Appeals in Matter of R-A-, 

 (BIA
1999), and directed the Board on remand to stay reconsideration of the case
until after the publication in final form of a proposed rule published after the
Board’s decision. On February 21, 2003, Attorney General Ashcroft certified
the Board’s decision for review but remanded the case on January 19, 2005,
again directing the Board to reconsider its decision “in light of the final rule.”
Matter of R-A-, 

 (A.G. 2005). Pursuant to 

(h)(1)(i) (2008), I direct the Board to refer this case to me for review.
For the reasons set forth in the accompanying opinion, I lift the stay and
remand the case for further proceedings in accordance with this opinion.

                                      OPINION
   In Matter of R-A-, 

 (BIA 1999; A.G. 2001), the Board of
Immigration Appeals denied a claim for asylum filed by an alien who had been
the victim of domestic violence in Guatemala. The respondent in that case
contended that the serious harm inflicted on her by her husband constituted
persecution on account of her membership in a particular social group, defined
as “Guatemalan women who have been involved intimately with Guatemalan
male companions, who believe that women are to live under male



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 (A.G. 2008)                                  Interim Decision #3624




domination.” Id. at 911. The Acting Commissioner of the Immigration and
Naturalization Service referred the decision to the Attorney General for
review.
   On January 19, 2001, Attorney General Reno vacated the Board’s decision
and directed the Board on remand to stay reconsideration of the case pending
the publication in final form of a proposed rule that had been published after
the Board’s decision. Among other things, the proposed rule would have
amended the asylum regulations relating to the meaning of the terms
“persecution,” “on account of,” and “particular social group.” See Asylum and
Withholding Definitions, 

 (Dec. 7, 2000). Attorney
General Reno’s order directed the Board to reconsider its decision “in light of
the final rule.” The Board has continued to defer its reconsideration of Matter
of R-A- since the issuance of that stay order.1
   In the years since the issuance of the stay order, both the Board and courts
of appeals have issued numerous decisions relating to various aspects of
asylum law under the existing statutory and regulatory provisions. Although
these intervening decisions may not have directly resolved the issues presented
in Matter of R-A-, some of them have addressed, for example, the terms
“persecution,” “on account of,” and “particular social group,” and thus may
have relevance to the issues presented with respect to asylum claims based on
domestic violence. See, e.g., Matter of E-A-G-, 

 (BIA 2008);
Matter of S-E-G-, 

 (BIA 2008); Matter of A-M-E- & J-G-U-,

 (BIA 2007); Matter of C-A-, 

 (BIA 2006).
   In addition, I have been advised that the Board has been holding not only
the case of the particular alien who is the subject of the Matter of R-A-
decision, but also a growing number of similar cases involving aliens who
have alleged that they were victims of domestic violence in their home
countries.2 The stay order has prevented the Board from acting on these cases.
   In light of these developments and the fact that the proposed rule cited by
Attorney General Reno never has been made final, I have decided to lift the
stay so that the Board can revisit the issues in Matter of R-A- and related cases
and issue new decisions. Accordingly, the Board should now proceed as it
sees fit with its reconsideration of Matter of R-A- and the other cases involving


1
  In 2003, Attorney General Ashcroft certified the Board’s decision in Matter of R-A- for
review and provided an opportunity for additional briefing, but ultimately remanded the
case, again directing the Board to reconsider its decision “in light of the final rule.” Matter
of R-A-, 

 (A.G. 2005).
2
  For aliens victimized by domestic violence in the United States, I note that the immigration
laws already provide remedies in particular circumstances, including provisions for
self-petitioning by battered spouses, the availability of special waivers, and the opportunity
to apply for U-1 nonimmigrant status.

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similarly situated aliens. This review necessarily will be based on the current
regulations, because the proposed rule has not been made final. Given the
passage of time, the Board may choose to request additional briefing in the
pending cases or to remand cases to Immigration Judges for further factual
development.
   In engaging in this review (as in any review), the Board should of course
consider relevant courts of appeals decisions. Insofar as a question involves
interpretation of ambiguous statutory language, the Board is free to exercise
its own discretion and issue a precedent decision establishing a uniform
standard nationwide. Providing a consistent, authoritative, nationwide
interpretation of ambiguous provisions of the immigration laws is one of the
key duties of the Board. See, e.g., 

(d)(1)(2008) (“[T]he
Board, through precedent decisions, shall provide clear and uniform guidance
to [DHS], the immigration judges, and the general public on the proper
interpretation and administration of the Act and its implementing
regulations.”); see also INS v. Aguirre-Aguirre, 

 (1999)
(“[W]e have recognized that judicial deference to the Executive Branch is
especially appropriate in the immigration context where officials ‘exercise
especially sensitive political functions that implicate questions of foreign
relations.’” (quoting INS v. Abudu, 

 (1988))); Jian Hui Shao
v. BIA, 

 (2d Cir. 2006) (noting that “only a precedential
decision by the BIA—or the Supreme Court of the United States—can ensure
the uniformity that seems to us especially desirable in [asylum] cases such as
these”).3 Moreover, the Supreme Court has made clear that administrative
agencies are not bound by prior judicial interpretations of ambiguous statutory
provisions, because there is “a ‘presumption that Congress, when it left
ambiguity in a statute meant for implementation by an agency, understood that
the ambiguity would be resolved, first and foremost, by the agency, and
desired the agency (rather than the courts) to possess whatever degree of
discretion the ambiguity allows.’” National Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 

 (2005) (quoting Smiley v. Citibank
(South Dakota), N.A., 

 (1996) (citing Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 

 (1984))).4

3
  Of course, the Board’s decisions are also subject to review by the Attorney General as
provided in 

(h) (2008). See, e.g., Matter of J-S-, 

 (A.G.
2008) (overruling two prior asylum decisions by the Board).
4
  Prior to the Supreme Court’s decision in Brand X Internet, the Board had held that it was
generally bound to apply existing circuit precedent in cases arising in that circuit. See, e.g.,
Matter of Anselmo, 

 (BIA 1989); Matter of K-S-, 

 (BIA
1993). As the Board itself appears to have recognized, however, those decisions are no
longer good law with respect to cases involving the interpretation of ambiguous statutory
provisions. See Matter of Ramirez-Vargas, 

 (BIA 2008). See generally

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                                   CONCLUSION
   For the reasons set forth above, I remand this matter to the Board for
reconsideration in accordance with this opinion.




Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review,
and Publication of Decisions as Precedents, 

, 34,659-61 (June 18, 2008)
(noting that “[t]he Supreme Court’s decision in Brand X Internet offers an important
opportunity for the Attorney General and the Board to be able to reclaim Chevron deference
with respect to the interpretation of ambiguous statutory provisions in the immigration laws,
notwithstanding contrary judicial interpretations, as long as the agency interpretation is
within the scope of Chevron step two deference”).


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