A Step Too Far: Chevron and ‘Particular Social Group’

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.