Asylum in the United States requires that an individual prove that they have been persecuted, or have a well-founded fear of persecution, on account of their race, religion, nationality, political opinion, or membership in a particular social group (“PSG”). This article deals with recent changes in the legal standard for PSG-based asylum claims.
PSG-based asylum applicants have traditionally had to demonstrate that membership in the claimed group is based on an immutable characteristic—i.e., a characteristic that they cannot change or should not be required to change. See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). But, in 2008, the Board of Immigration Appeals (“BIA”) issued two decisions which added two new elements to the PSG standard and made it decidedly more difficult to win an asylum claim. In Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008), and Matter of E-A-G-, 24 I&N 591 (BIA 2008), the BIA began requiring asylum applicants to prove that their proposed PSG’s were “socially visible” and able to be defined with particularity. These two new elements were quickly criticized by both immigration attorneys and the federal courts for being unclear, overly harsh, and a sharp departure from precedent. Two of the strongest criticisms were that the BIA was requiring that membership in a group be visible on-sight, and that it was unclear whether the PSG needed to be visible to society at large, or to the persecutor, or both. In response to these criticisms the BIA recently reconsidered social visibility and particularity in Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014), and Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).
In these two cases the BIA attempted to clarify how the two new elements should be applied, as well as answer criticisms of the BIA’s reasoning in adopting social visibility and particularity. For the asylum applicant, the important takeaway is that the standard for establishing a PSG is still a stringent one. The BIA renamed the social visibility test to “social distinction,” and stated that it did not require on-sight visibility. But, importantly, it also stated that the group must be perceived as a group by more than just the persecutors—a curious requirement when asylum applicants face the threat of serious injury or death because they are viewed by their persecutors as a group. With respect to particularity, the BIA doubled down. It not only reaffirmed particularity as a requirement for a valid PSG, but seemed to state, in dicta, that such a group must be homogenous or uniform. This means, for example, that a group that included members of any age, sex, or background—such as opposition to female genital mutilation (an already-established PSG)—could be denied recognition by the BIA if it did not contain other limiting characteristics.
What does this mean for the potential asylum applicant? First, unfortunately, the BIA has created something of a catch-22. The use of commonly used descriptors, like former child soldier, is likely not specific enough to satisfy the particularity test, but, once an applicant starts using specific limiting characteristics, they have created a group (such as former child soldiers who were recruited under the age of 15) that is not recognized by society at large. Second, the requirement that a PSG is recognized by ‘society’ means that an applicant must provide significant sociological evidence about the country in question—a difficult and time-consuming process. In conclusion, the current legal standard means that individuals applying for asylum based on membership in a particular social group should strongly consider contacting a reputable immigration attorney to assist in navigating the obstacles to establishing membership in a valid PSG.