Give Me Your Tired, Your Poor, Your Particular and Socially Visible Masses: the Eighth Circuit's New Standard Governing Particular Social Group Asylum Applications After Gaitan v. Holder, 671 F.3d 678 (8th Cir. 2012)

• Jurisdiction: United States,Federal
• Citation: Vol. 92
• Publication year: 2021

92 Nebraska L. Rev. 431. Give Me Your Tired, Your Poor, Your Particular and Socially Visible Masses: The Eighth Circuit's New Standard Governing Particular Social Group Asylum Applications After Gaitan v. Holder, 671 F.3d 678 (8th Cir. 2012)

Give Me Your Tired, Your Poor, Your Particular and Socially Visible Masses: The Eighth Circuit's New Standard Governing Particular Social Group Asylum Applications After Gaitan v. Holder, 671 F.3d 678 (8th Cir. 2012)

Note(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 432

II. Background ........................................... 434
A. Seeking and Attaining Asylum in the United States ............................................. 434
B. The Evolution of Particular Social Group .......... 435
1. International Asylum Standards ............... 435
2. Federal Agency Interpretation and Judicial Deference ..................................... 436
a. In re Acosta ................................ 437
b. The Rise of Social Visibility and Particularity ............................... 437
c. One Summer Day in 2008: In re S-E-G- and In re E-A-G- ............................... 438
C. Gaitan v. Holder .................................. 439
1. Facts and Procedural History .................. 439
2. Majority Opinion .............................. 440
3. Concurring Opinion ............................ 440

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III. Analysis .............................................. 441
A. Grounds for Overturning Gaitan ................... 441
1. Neither Constanza nor Ortiz-Puentes Was Controlling Precedent .......................... 441
2. The New Particular Social Group Formulation Adopted from the BIA Is Arbitrary and Capricious, and Thus Should Not Be Given Chevron Deference ............................. 443
a. The BIA's New PSG Formulation Is Inconsistent with Past Interpretation ....... 443
b. The BIA Departed from Acosta Without Properly Explaining Its Reasons ............ 445
b. The New BIA Formulation Will Lead to Arbitrary and Capricious Results ........... 449
B. A Return to Acosta and the Immutable Characteristics Test ............................... 451

IV. Conclusion ............................................ 452

I. INTRODUCTION

For many noncitizens today, the law of asylum exists as the sole route to lawful residence in the United States. The safety and relief that the mere borderlines of our nation secure for some of the most desperate and oppressed are accessed only through this one body of law. Though it may not say so on the pedestal of the Statue of Liberty, passage through Emma Lazarus's "golden door"(fn1) (or, in other cases, permission to stay on this side of the door) for "the homeless, tempesttost"(fn2) requires, for many, navigation through the modern obstacles of asylum law. Needless to say, there is not merely one door to this country. Nor is there a single key that opens them all. Whether a claim of asylum is successful and, therefore, whether a noncitizen is able to enjoy the refuge that this country provides, depends very much on what part of the country the noncitizen inhabits.

Those seeking asylum in the vast expanse of the American Mid west may notice that the door has recently gotten smaller. In Gaitan v. Holder,(fn3) the Eighth Circuit Court of Appeals fundamentally changed the requirements of attaining asylee status by formally requiring that a particular social group (PSG), one of the protected asylum classes in the Immigration and Nationality Act(fn4) (INA), possess

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the limiting characteristics of "social visibility" and "particularity."(fn5) At first glance, Gaitan does not appear to be the culprit in altering the asylum scheme in the Eighth Circuit, as the court merely purported to "follow" two of its own recent cases,(fn6) Constanza v. Holder(fn7) and Ortiz-Puentes v. Holder,(fn8) which adopted the particularity and social visibility requirements established by the Board of Immigration Appeals(fn9) (BIA). However, neither Constanza nor Ortiz-Puentes addressed the issue of whether the BIA acted "arbitrarily and capriciously in adding the requirements of 'social visibility' and 'particularity' to its definition of 'particular social group.'"(fn10) By answering no, the Gaitan majority unequivocally changed particularity and social visibility from being "some of the many factors in the holistic analysis of the issue to absolute prerequisites to establishing membership in a particular social group"(fn11) and thus took sides in the split among the federal circuits.

The Eighth Circuit's decision in Gaitan was a momentous development in federal immigration jurisprudence and will have dire effects on asylum seekers in the American Midwest. The decision illuminates a unique aspect of immigration law(fn12): one who seeks asylum on the basis of a PSG in Illinois (the Seventh Circuit) may be admitted,(fn13) while the same noncitizen may be excluded in Nebraska (the Eighth Circuit) for not meeting the particularity and social visibility criteria now solidified by Gaitan. This characteristic is especially important as to asylum, where decisions can potentially mean the difference between life and death of the petitioner.(fn14) In Part II, this Note traces

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the relatively recent history of asylum law, with a specific focus on the particularity and social visibility requirements, to understand the basis on which the Eighth Circuit took sides in this federal circuit split. Part III of this Note criticizes the prudence of Gaitan's holding in casually accepting the BIA's new PSG formulation and proposes the Eighth Circuit rely on the original PSG standard set out in In re Acosta(fn15) in future cases.

Gaitan unjustifiably moved the Eighth Circuit to a stricter, more exclusive vision of asylum law and gave legal credence to an arbitrary and capricious PSG formulation created by the BIA. This Note proposes the Eighth Circuit overturn Gaitan insofar as it adopted the BIA's new PSG formulation(fn16) and revert back to the Acosta standard that most fairly governs federal asylum law.

II. BACKGROUND

A. Seeking and Attaining Asylum in the United States

Because immigration is a highly administrative body of law in the United States, inquiry into the status of noncitizens relies heavily upon federal statutes and regulations. The premier source of this law is the expansive INA. In order to qualify for asylum under this legislation, an applicant must meet one of the five protected grounds under the statutory definition of "refugee"(fn17):

[A]ny person who is outside any country of such person's nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.(fn18)

This Note will focus only upon the protected ground of membership in a particular social group.

Petitions for asylum are categorized as either "affirmative" or "defensive," depending on the status of the applicant at the time of her application: noncitizens who are in legal nonimmigrant status file "affirmative" asylum applications, whereas "defensive" asylum applications are filed in response to removal proceedings already instituted against the noncitizen.(fn19) Defensive asylum applications are exclu

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sively adjudicated by an Immigration Judge (IJ) who makes the initial determination of whether the applicant meets the statutory definition of "refugee."(fn20) If the applicant receives an adverse determination, the IJ's decision can be appealed to the BIA.(fn21) While severely limited in reviewing the IJ's findings of fact,(fn22) the BIA is allowed to "review questions of law, discretion, and judgment" of IJ decisions de novo.(fn23) BIA decisions are then appealed to the federal circuit in which the IJ made the initial determination.(fn24)

B. The Evolution of Particular Social Group

1. International Asylum Standards

Modern asylum law can be traced back to international standards promulgated in the immediate post-World War II era Convention Relating to the Status of Refugees(fn25) (1951 Convention).(fn26) Adopted by the United Nations General Assembly, the 1951 Convention was written to establish a worldwide standard of refugee and asylee status.(fn27) To that end, it defined "refugee" as a person who,

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.(fn28)

Though not a signatory of the 1951 Convention,(fn29) the United States would honor this standard by ratifying the 1967 Protocol Relating to the Status of Refugees(fn30) (1967 Protocol), which incorporated the original 1951 Convention definition.(fn31) Though the Protocol was unenforce 5

able in U.S. courts,(fn32) the definition of refugee therein would become federal law when Congress passed the Refugee Act of 1980.(fn33) The Refugee Act implemented, with very minor changes, the original...