Death of the Particular Social Group

Abstract

An applicant seeking asylum in the United States must demonstrate that she fears persecution on account of one of five protected grounds—race, religion, national origin, political opinion, or membership in a particular social group (PSG). The PSG ground has long been the most complex and challenging avenue for relief, and in the Trump era, already precarious protections for groups such as survivors of intimate partner and gang violence are at great risk. The Board of Immigration Appeals’ first, and longstanding, definition of a PSG in Matter of Acosta required members to possess “common immutable characteristics,” those that, like the other statutory grounds, either could not be changed or were so fundamental that one should not be required to change them. This article will reveal that since the Board imposed two additional requirements—that PSGs possess social distinction and particularity—over a decade ago, the Board has recognized only two new particular social groups. Both of those groups, one protecting survivors of intimate partner violence and the other family membership, were invalidated by Trump administration attorneys general. Thus, when examining BIA jurisprudence, it appears that the particular social group is dead. This article will discuss the evolution of the particular social group ground in both domestic and international law and review the disparate treatment of PSGs by the Board of Immigration Appeals and federal circuit courts. It will then make recommendations—including legislation, reconsideration of the Attorney General’s broad authority to overrule cases using the power of self-referral, and consideration of whether Chevron deference remains appropriate for PSG jurisprudence—for a return to the more equitable, and legally sound, Acosta immutability test.