Getting to Group Under U.S. Asylum Law

In February 2014, the Board of Immigration Appeals (BIA or the Board) issued two new precedential decisions, Matter of M-E-V-G- and Matter of W-G-R-, clarifying the legal requirements for PSG asylum. This Essay argues that the BIA’s decisions further confuse this already complex area of law and the standards established in the decisions exclude particular social groups already recognized under U.S. law. The complications and contradictions in these and other BIA decisions carry the risk of excluding valid claims to PSG protection and rely upon criteria that cannot be applied consistently. Because the new BIA PSG standards are unworkable, courts should defer to the standard established in the 1985 BIA decision, Matter of Acosta.

The criteria recognized in Matter of Acosta are accepted internationally and will lead to clearer and more consistent outcomes. Next, this Essay proposes a novel way to re-conceptualize “social distinction”— a requirement in BIA and other PSG decisions—as “social construction” to better align the standard with the Acosta decision, and more accurately capture social reality and the intent of the Refugee Convention. Finally, this Essay argues that “particularity”—another requirement in many PSG decisions—should be eliminated entirely because it is already implied by a social distinction or social construction standard.