No Fame Required: Where Matter of L-E-A- Went Wrong

January 29, 2020
Erin Liechty
Bate’s Fellow at St. Andrew’s Refugee Services and a Recent Graduate of the University of Michigan Law School

Refugee status is not available for just anyone facing persecution in their home state.  Rather, the Refugee Convention only provides protection for individuals facing persecution based on one of five grounds: race, religion, nationality, membership of a particular social group or political opinion.[1] Membership in a particular social group is the Convention ground defined with the least clarity.[2] While different interpretative approaches have resulted in varying understandings of the meaning of particular social group, most jurisdictions have widely accepted family-based social groups.[3]Until recently, the United States was one of them.[4]

In Matter of L-E-A-, the Attorney General moved away from the United States’ long-standing acceptance of family as a particular social group, and held instead that nuclear family will not necessarily qualify as a particular social group.[5] This decision is incorrect and departs not only from the U.S.’s own jurisprudence[6], but also from other jurisdictions’ acceptance of family-based particular social groups. 

A. Matter of L-E-A- Held that Families Lacking Social Distinction Are Not Particular Social Groups

In Matter of L-E-A-, Attorney General Barr held that family does not generally qualify as a social group because it lacks the necessary quality of social distinction.[7] The opinion cites two 2014 companion cases, Matter of M-E-V-G- and Matter of W-G-R-, for the social distinction requirement: “An applicant must establish that his specific family group is defined with sufficient particular and is socially distinct in his society.”[8] It also criticizes the lower decision of the U.S. Board of Immigration Appeals (BIA) and other BIA and courts of appeal decisions finding that family is a particular social group.  Matter of L-E-A- argues that had these tribunals undertaken a thorough and proper social distinction analysis, they would not have found that family was a particular social group since families are not socially distinct.[9]

While courts have previously understood that families are socially distinct because of their well-recognized place as a unit of society,[10] the Attorney General challenges this understanding. He asserts, in Matter of L-E-A-, that “[i]t is not sufficient to observe that the applicant’s society (or societies in general) place great significance on the concept of the family [because if] this were the case, virtually everyone in that society would be a member of a cognizable particular social group.”[11] He instead requires that the particular family be socially distinct in the relevant society,[12] i.e. be famous—such as notable political families, families on reality television shows, or the like. This new pronouncement of the meaning of social distinction essentially wipes out the possibility of family-based claims in the United States.   

B. Interpretative Approaches to Social Group Favor the Inclusion of Family-Based Social Groups.

Particular social group (“social group”) has not been interpreted uniformly across jurisdictions.[13] The conclusion in Matter of L-E-A-—that family is not necessarily a particular social group—is incorrect under each of three approaches to interpreting particular social group: ejusdem generis; social perception; and a hybrid approach. Family qualifies as a particular social group under any of these approaches.

1. Ejusdem Generis Approach

In Matter of Acosta, the United States employed the ejusdem generis approach,[14] the dominant approach among many other countries,[15] to interpret the meaning of social group.[16] Finding that immutability was a defining characteristic of the other four refugee grounds,[17] the BIA interpreted social group to mean a group which shares “a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed.”[18] Among the examples it gave of qualifying social groups is “kinship ties;” which it did not qualify with any social notoriety requirement.[19] Rather, no matter how famous or obscure a particular family is, it is still a social group, as family relationships do not change.[20] While the jurisprudence in the United States on the interpretation of social group has developed since this 1985 decision, the BIA and federal courts of appeal consistently found family to be a social group until Attorney General Barr decided Matter of L-E-A- in July 2019.[21]

2. Social Perception Test and the United States’ Social Distinction Factor.

The social perception test comes from Australia.[22] Of its three factors—(1) an identifiable characteristic or attribute common to all members of the group (2) that is other than the shared fear of persecution and (3) distinguishes the group from society at large[23]—the latter is most key and is akin to the third factor in the U.S.’s contemporary, hybrid social group test.[24] While Australian courts have clarified that the “general principle is not that the group must be recognized or perceived within the society, but rather that the group must be distinguished from the rest of society,”[25] they have not clarified how these groups must be perceived, either as objectively cognizable as a group or subjectively recognized.[26] U.S. case law has similarly left a gap in the jurisprudence regarding the type of social distinction that is required.

In Matter of L-E-A-, the Attorney General took a sharp turn from U.S. case law by contorting the meaning of social distinction. Previously, the socially distinct factor required that  the social group be “set apart, or distinct, from other persons within the society in some significant way;”[27] that “there […] be evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group;”[28] and that the group be recognized by more than just the persecutor alone, lest the social distinction requirement collapse completely.[29] But, in an uncited sentence in Matter of L-E-A-, the Attorney General tags on the requirement that “when an applicant proposes a group composed of a specific family unit, he must show that his proposed group has some greater meaning in society.”[30]

The Attorney General justifies his position by misreading Matter of M-E-V-G-. He cites it for the proposition that, “[i]f an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way.’”[31] The context of the citation, however, defeats the Attorney General’s proposition that social distinction necessarily entails fame or popularity. Matter of M-E-V-G- notes that ‘social visibility’ has never been a requirement for social distinction,[32] which instead refers “to the social salience of the group in a society, or in other words, whether the set of individuals with the shared characteristic would be perceived as a group by society.”[33] However, social visibility is the exact requirement the Attorney General imposes on the family-based social group in Matter of L-E-A- by concluding that “unless an immediate family carries greater societal import, it is unlikely that a proposed family-based group will be ‘distinct’ in the way required by the [Immigration & Nationality Act] for purposes of asylum.”[34] That the Attorney General surrounds his “greater societal import” requirement with language about social distinction does not make it any less an incorrect imposition of a social visibility requirement on family-based social groups,


In conclusion, family, any family, may qualify as a particular social group under the ejusdem generis, social distinction, and hybrid tests because family members share immutable characteristics and society does view families as socially distinct. The Attorney General’s addition of a fame or popularity requirement to the social distinction interpretation as applied to families[35] departs from the common understanding of a social group, both internationally and in the United States.

Families are socially distinct—this is true no matter the reference community. The United States has family-based immigration status, family law, and family-size bags of chips. It shapes its laws, communities, and even schools around the concept of family because it recognizes that family is a special, socially distinct entity. This, not a particular family’s notoriety, [36] should be enough to meet the social distinction prong.

Family-based claims have long provided a means to attain asylum for those targeted because of family involvement in gang violence.[37] With the United States’ current policy objective of limiting the inflow of asylum seekers through the southern border, it should come as no surprise that the Attorney General is creating new authority that can be used to deny asylum to people fleeing gang violence in Central America—one of the main reasons for seeking safety in the United States.[38] 

The silver lining of the grim Matter of L-E-A- decision is that it does leave some room to argue that certain families are socially distinct. Advocates should take advantage of this window of opportunity to still fit individual refugees’ families into a social group. 

[1] Convention Relating to the Status of Refugees, art 1(A)(1), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150.

[2] James Hathaway & Michelle Foster, The Law of Refugee Status, 444 (2d 2014).

[3] Id. at 446.

[4] Matter of L-E-A- recognizes the extensive case law acknowledging and allowing family-based particular social groups. See 27 I&N Dec. 581, 589 (A.G. 2019) (“I recognize that a number of courts of appeals have issued opinions that recognize a family-based social group as a ‘particular social group’ under the asylum statute. In some of these cases, the courts may have been willing (as the Board was in this case) to accept, or assume with little analysis, the existence of a particular social group because the court went on to deny asylum on other grounds. See, e.g., Cruz-Guzman v. Barr, 920 F.3d 1033, 1037 (6th Cir. 2019); Rivas v. Sessions, 899 F.3d 537, 542 (8th Cir. 2018); Bernal-Rendon v. Gonzales, 419 F.3d 877, 881 (8th Cir. 2005). In other cases, the parties stipulated to the validity of the applicant’s particular social group definition and the applicant’s membership therein. See, e.g., K.H. v. Barr, 920 F.3d 470, 474 (6th Cir. 2019).”).

[5] See L-E-A-, 27 I&N Dec. at 586, 596.

[6] See, e.g.,Acosta, 19 I&N Dec. 211, 233 (BIA 1985).

[7] L-E-A-, 27 I&N Dec. at 586, 596.

[8] Id. at 586.

[9] See id. at 589–92.

[10] Hathaway & Foster, supra note 2, at 445–46.

[11] L-E-A-, 27 I&N Dec. at 594.

[12] Id. (quoting) Matter of M-E-V-G-, 26 I&N 227, 238 (Dec. 2014) (“If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way.’”)

[13]Hathaway & Foster, supra note 2, at section 5.9.

[14] Ejusdem generis is a statutory construction employed when interpreting an ambiguous, broad term that follows a list of specific terms; it uses the other listed terms to shed light on what the drafters intended in terms of scope and meaning of the ambiguous term. See Acosta, 19 I&N Dec. 211, 233 (BIA 1985) (“[G]eneral words used in an enumeration with specific words should be construed in a manner consistent with the specific words.”).

[15] See Hathaway & Foster, supra note 2, at 426.

[16] See Acosta, 19 I&N Dec. at 233–34.

[17] Id. at 233.

[18] Id. at 234.

[19] See id. at 233.

[20] See id at 234.

[21] See Hathaway & Foster, supra note 2, at 445–47. 

[22] See id. at 428 (quoting Applicant A v. Minister for Immigration & Ethnic Affairs [1997] 190 CLR 225, 241 (Austl.)).

[23] See id (quoting Applicant S v. Minister for Immigration & Multicultural Affairs [2004] 217 CLR 387, ¶ 36 (Austl.)).

[24] The hybrid test is a conjunctive test consisting of both the immutable characteristic of Matter of Acosta and the Australian social distinction requirement. This Note analyzes the treatment of family by the social distinction test and the hybrid test together since Matter of L-E-A- held that most families would not satisfy the social distinction prong of the hybrid test. Matter of L-E-A- articulated this hybrid test as follows: “Under existing Board precedent, a particular social group must share ‘a common immutable characteristic’ that is defined with particularity and ‘set apart, or distinct, from other persons within the society in some significant way.’” 27 I&N Dec. at 581-82 (citing M-E-V-G-, 26 I&N Dec. 227, 238 (BIA 2014)).

[25] Applicant S, 217 CLR at ¶ 27 (emphasis added).

[26] Hathaway & Foster, supra note 2, at 428.

[27] See M-E-V-G-, 26 I&N Dec., at 238.

[28] See W-G-R-, 26 I&N Dec. 208, 217 (BIA 2014).

[29] See id. at 217–18.

[30] L-E-A-, 27 I&N Dec., at 594 (emphasis added).

[31] Id. at 594 (citing M-E-V-G-, 26 I&N Dec., at 238) (emphasis added).

[32] See M-E-V-G-, 26 I&N Dec., at 238.

[33] See id. (quoting Umana-Ramos v. Holder, 724 F.3d 667, 672 (6th Cir. 2013).

[34] L-E-A-, 27 I&N Dec., at 595 (emphasis added).

[35] This requirement is not imposed on any other social group. For example, LGBTI cases are classified under the social group ground, but there is no requirement that the LGBTI individual be famous or well-known. Child soldiers are another example. But again, there is no requirement that that specific child soldier be popular or well-known. When applied to other particular social groups, this extra requirement for social distinction is seen for what it is: absurd.

[36] One commentator on L-E-A- has noted that under the new social distinction requirement, an asylum-seeker must be from a family like the Kardashians to demonstrate membership in a particular social group. See Jeffrey Chase, L-E-A-: How Much Did The AG Change?, Opinions/Analysis on Immigration Law (Aug. 11, 2019),

[37] See Hathaway & Foster, supra note 2, at 446–48.

[38] See Central America Refugee Crisis, UNHCR: Emergencies, (lasted visited Jan. 6, 2020).

Suggested Citation: Erin Liechty, No Fame Required: Where Matter of L-E-A- Went Wrong, RefLaw (Jan. 29, 2020),


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