Do I need to pin a target to my back? The definition of "particular social group" in U.S. asylum law.

JurisdictionUnited States
AuthorSternberg, Nitzan
Date01 November 2011

Introduction I. Asylum Law A. U.S. Asylum Law B. International Origins of U.S. Asylum Law C. Board of Immigration Appeals and Federal Circuit Court Cases 1. 1985: The Immutable Characteristics Test 2. 2000: The Voluntary Association or Innate Characteristics Test 3. 2006: The Social Visibility Test and Particularity Requirement 4. 2007-2008: The Particularity Requirement II. Conflict: The Definition of Particular Social Group A. Circuits that Follow the Board of Immigration Appeals: Immutable Characteristics, Social Visibility, and Particularity B. Third and Seventh Circuits: Immutable Characteristics and Rejection of Social Visibility and Particularity C. Ninth Circuit: Voluntary Association or Innate Characteristics Test, or the Application of Chevron Deference D. Justifications and Criticisms of the Different Approaches to Defining Particular Social Group 1. The Application of Chevron Deference 2. Social Visibility: Strengths and Weaknesses 3. The Ninth Circuit's Innate Characteristics or Voluntary Association Test III. Resolution: The Seventh Circuit's Approach A. Uniformity and Consistency of Law, and the Supreme Court B. Adopting the Third and Seventh Circuits' Approach Conclusion INTRODUCTION

More than ten years ago in Cameroon, Elizabeth became a widow. (1) Elizabeth's in-laws accused her of killing her husband for his property, and took away everything she owned. (2) Her in-laws shaved her head with a broken bottle, although scissors are customary. (3) She was not allowed to see her children, bathe, or wear clothes for two months. (4) Her husband's family forced her to sleep on the ground. (5) After two months, she escaped with her children to her sister's home. (6) A month later, her in-laws found her and demanded that she either pay the bride price or marry her husband's older brother, who already had two wives. (7) When she told them that she would not marry her husband's brother and that she could not pay the bride price, her in-laws beat her. (8) The in-laws threatened that if she did not comply with their demands within one month, they would kill her and take her children. (9) Fortunately, Elizabeth and her children were able to leave Cameroon and come to the United States. (10)

More than eight years after requesting asylum, Elizabeth was granted asylum in the United States. (11) To be eligible for asylum, an asylum seeker must establish that she experienced persecution or fear of persecution on account of one of five enumerated grounds, including membership in a "particular social group" ("PSG"). (12) When Elizabeth's case came before the United States Court of Appeals for the Eighth Circuit, the court held that Cameroonian widows constitute a PSG, and that the Immigration Judge ("IJ") and Board of Immigration Appeals ("BIA") erred in holding otherwise in her earlier asylum proceedings, (13) One year after the Eighth Circuit's decision, the BIA found Elizabeth eligible for asylum. (14) After more than eight years, Elizabeth found refuge in the United States. (15)

Elizabeth's case highlights how the confusion about which groups constitute PSGs can seriously delay meritorious asylum applications. (16) Here, the immigration courts' erroneous rulings invalidating Elizabeth's PSG of female Cameroonian widows stood as a barrier to her asylum claim. (17) Just before Elizabeth was granted asylum, the attorney who represented her explained that "Elizabeth's case is approaching almost nine years in the asylum process, and one of the highest courts of the United States has found serious errors with the decision of both the Immigration Judge and the BIA." (18) Based on the duration of Elizabeth's case, the attorney concluded that "[t]he oppression that Elizabeth has experienced in Cameroon has continued in the U.S. through the asylum process." (19)

Thousands of refugees like Elizabeth seek asylum in the United States every year. (20) In 2010, the United States received more than 32,000 asylum applications, (21) the second-highest number of applications in the world. (22) The large number of refugees that seek asylum in the United States every year indicates the importance of U.S. asylum law and its substantial effect on the world refugee population. (23)

A refugee seeking asylum in the United States must establish the eligibility of her asylum claim. (24) To be eligible for asylum in the United States, an applicant has to establish "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (25) The statute governing asylum law, the Immigration and Nationality Act ("INA"), does not define the phrase "particular social group." (26) Asylees whose claims do not fit within the categories of race, religion, nationality, or political opinion often try to fit their claims within the undefined category of PSG. (27) As a result, a court's interpretation of PSG can determine the outcome of a case. (28) In fact, among the five grounds for asylum, PSG is the second most frequently used. (29) Additionally, the definition of PSG is the most debated ground for asylum. (30) For these reasons, (31) the definition of this term merits analysis.

The debate about asylum law and the definition of PSG is partly informed by policy. (32) Commentators advocating for a more inclusive definition of PSG assert that asylum law should comport with the humanitarian purpose of international refugee law. (33) On the other side of the debate, commentators in favor of restricting the definition of PSG make arguments based on the risk of tipping the balance struck by multilateral treaties, the risk of making the other enumerated categories redundant, and the dangers of using PSG as a "safety net." (34)

The most prominent argument in favor of restricting the definition of PSG is based on concerns about opening the floodgates. (35) Advocates of restricting asylum law argue that if the definition of PSG is too broad, the United States will "open the floodgates" of refugees. (36) Other commentators contend that floodgate concerns are unwarranted. (37) These commentators base their contention on three factors: the negligible effect of past expansions in U.S. asylum law, how floodgates fears did not materialize in other nations, and the hurdles asylum applicants must overcome to obtain asylum. (38)

The policy debate about U.S. asylum law can be boiled down to arguments about whether asylum laws are too inclusive or too restrictive. (39) This Note advocates the position that adjudication concerning PSG should be uniform across jurisdictions to avoid inconsistency and arbitrariness. (40) There are significant differences among the circuit courts' approaches to defining PSG. (41) These differences come from the circuit courts' use of different legal tests to define PSG. (42) The different approaches to defining PSG have led to a circuit split between the Ninth Circuit, the Third and Seventh Circuits, and the circuit courts that follow the BIA. (43) Specifically, in Gatimi v. Holder, the Seventh Circuit rejected the approach used by the BIA to define PSG, thus moving away from the definition of PSG used by the majority of circuit courts. (44) Two years later, the Third Circuit followed suit, also rejecting the BIA's approach. (45) This Note will refer to the Third and Seventh Circuits as the "dissenting circuits." (46)

This Note analyzes the definition of PSG in asylum law. Specifically, it examines the various tests that different circuit courts use to define PSG. Rather than focus on a specific affected group, (47) this Note looks at the definition of PSG in general, emphasizing strengths and weaknesses of the different approaches currently practiced in the United States. This point of view allows for a resolution to the conflict among the circuits that is not dependent on the fate of a specific group. Part I explains the domestic and international legal framework of PSG in U.S. asylum law. Part II analyzes the different tests that the circuit courts use to define PSG. Finally, Part III proposes a resolution to the conflicting definitions and argues that the Third and Seventh Circuits have formulated the best approach to defining PSG48 because the approach is easiest to apply, based on coherent statutory analysis, and consistent with the United States' international obligations. Given the difficulty of passing immigration legislation creating a uniform definition of PSG, (49) this Note proposes that the Supreme Court (50) should adopt the approach of the dissenting circuits to achieve the goals of uniformity and consistency in asylum law.


    To set up the circuit split about the meaning of PSG that will be discussed in Part II, this Part presents an overview of the domestic and international legal framework for PSG in U.S. asylum law. It first discusses the domestic and international legal framework, and then goes on to present the cases that have developed the term PSG.

    1. U.S. Asylum Law

      The United States has a robust legal framework that shapes the definition of PSG. The statutory basis for "membership in a particular social group" as a ground for asylum comes from the Refugee Act of 1980, which amended the INA. (51) The statute defines a "refugee" as:

      [A]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and 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. (52) Neither the statute nor its legislative history define PSG. (53) Therefore, the statute does not determine the meaning of PSG. (54)

      When ruling on an asylum claim, most courts look at...

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