Mallory Perazzo, Associate Member, University of Cincinnati College of Law
Undocumented foreign nationals in the United States often face uncertainty in their ability to stay in this country, even when the alternative means returning to persecution. The approval rate for asylum seekers in the past several years has hovered around 30 percent, but the likelihood of success depends highly on in which court the immigrant appears. For example, twelve immigration courts accumulated denial rates above 90 percent, while seven immigration courts deny less than 50 percent of cases.
Courts must apply asylum law, like all law, consistently. Consistent application of immigration law promotes justice for immigrants by providing legal certainty, building trust in the judicial system, and preventing discrimination. One of the requirements for many asylum seekers is that they are a member of a particular social group (“PSG”), but whether the court will classify one as such is unpredictable. This variability is due, in part, to the number of authorities making decisions on the controversial issue. The Supreme Court should offer guidance on how to define a PSG, and it should apply a broad definition.
A. Historical Standards for PSGs
To qualify for asylum, an individual must demonstrate a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a PSG. The courts have had little trouble defining the first three categories—race, religion, and nationality. The next category—political opinions—is more ambiguous, but still it has been defined rather broadly, generally referring to having any opinion relating to the country’s government or society. However, the last category—membership in a PSG—has been more difficult to define, and without any guidance from the INA, courts have applied the law inconsistently.
The Board of Immigration Appeals (“BIA”), which is tasked with making standards for immigration law, has defined and altered the standard for PSGs repeatedly. In a 1985 decision, Matter of Acosta, the BIA defined a PSG as a group who shares a common, immutable characteristic, or in other words, “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed” (“the Acosta standard”). Although the standard was widely celebrated and consistently applied, the BIA narrowed the standard in 2006 by adding requirements of particularity and social visibility. The particularity requirement was met if the group was sufficiently distinct so that the society in question recognized the group as a discrete class of persons, while the social visibility requirement was met if the group’s characteristics were generally recognizable by others in the community. Then, in 2014, the BIA narrowed the standard even more into a three-part test which asks whether the group (1) shares immutable and/or fundamental traits, (2) is “socially distinct,” and (3) is particular (“the 2014 three-part test”). More confusion was introduced in 2018 and 2019 when the Attorney General issued several very anti-asylum opinions, which stated broadly that domestic violence, gang-based violence, and family-based claims would generally not be sufficient to constitute a PSG, and contradicted the standards that had been in place since 2014. Fortunately, however, in June of 2021, the BIA broadened the definition again, vacating the 2018 and 2019 decisions, and advised that the standard return to the 2014 three-part test. Unlike the standard set forth in the 1980s, the 2014 three-part test is controversial and variably followed. In fact, the Seventh Circuit (and temporarily the Third Circuit) rejected the new definition outright, while the other circuits gave deference to the BIA and accepted the definition. Importantly, the BIA also has determined that asylum applications should be analyzed on a case-by-case basis; so a person from one country may qualify based on a PSG that a person from another country may not qualify, depending on the conditions of that country.
B. Inconsistent Application of the Law Since the Acosta Standard
Since the BIA abandoned the Acosta standard, courts have disagreed on the viability of many PSGs. For example, whether “women in a particular country” may constitute a PSG varies depending on the circuit. Courts have also disagreed on whether victims of domestic violence should constitute a PSG. Finally, the PSG of gang-based asylum claims have proven to be controversial as well. This list is far from exhaustive, but it provides three examples of categories of inconsistent and harmful case law.
In most circuits today, courts will not classify a PSG based solely on gender, but there are exceptions. This is sometimes illustrated by cases when PSGs were rejected that included gender as well as other characteristics, implying that the PSG of “women from that country” would certainly be rejected as well. For example, the Sixth Circuit has held that “single Salvadoran women without effective familial support” did not constitute a PSG, so it follows that “single Salvadoran women” would not either. Likewise, the First Circuit rejected the PSG “single Salvadoran women living alone targeted by gangs for sexual abuse.” The BIA also rejected the PSG of “Honduran women who fear femicide.” Nevertheless, some circuits have questioned whether women from a certain country may sometimes be a valid PSG. In one case, the Ninth Circuit held that the BIA erred in dismissing an undocumented foreign national’s appeal solely on the grounds that “female victims of gender-based violence” could not constitute a PSG, and said that the BIA must perform a rigorous analysis and consider on a case-by-case basis of whether the group is cognizable. The Eighth Circuit held that “Somali females” constituted a PSG in one case. However, the same court rejected the PSG “Iranian woman,” distinguishing the two because a factfinder could reasonably conclude that all Somali females have a well-founded fear of persecution based solely on gender given the presence of female genital mutilation.
Authorities have also debated the issue of whether domestic violence constitutes a PSG, but recent decisions offer more protection for victims of such crimes. The Department of Homeland Security (DHS) articulated its position that domestic violence-based asylum claims are valid, and a woman that is unable to leave her relationship should be a viable PSG. The Immigration and Naturalization Service (“INS”) guidelines on gender-based claims also noted that domestic violence claims are gender-related and should be a basis for an asylum claim. However, the BIA has alternated from approving such claims to not approving them and back again. Fortunately the most recent 2021 decision guided courts to issue PSGs more liberally to victims of domestic violence.
Similarly, gang-based violence claims have also been controversial among courts. As with domestic violence, the 2018 case held that gang-based asylum claims are generally not viable, but that decision was vacated. The Sixth Circuit has repeatedly held that one’s status as a business owner who refuses to pay extortion demands from a gang does not constitute a PSG. However, the Sixth Circuit has also held that “a former gang member in Honduras” constituted a PSG because it is impossible to change a past experience. The Fifth Circuit rejected the PSG of “El Salvadoran women targeted by gang members to be gang girlfriends.” The BIA has held that former gang members in El Salvador who have renounced their gang membership is not a viable PSG. However, the Ninth Circuit protected a woman when they determined that a gang was aware of her status as a single woman and used it to intimidate her. All these controversies illustrate the unpredictability of an asylum law case, which leads to the indeterminate future of immigrants.
The Supreme Court of the United States should set the precedent for lower courts to return to a liberal application of the Acosta standard. Defining a PSG simply as having any immutable characteristic makes sense for two primary reasons. First, the number of authorities weighing in on the subject has led to confusion, so the Supreme Court should offer guidance so that courts may understand and consistently apply the previously celebrated standard. Consistent application is important because the public deserves to understand the law so they may be able to better predict their futures. Without this sense of predictability, the public understandably loses trust in the law and therefore law enforcement. Immigrants generally do not trust the police, and this would be one step toward solving that problem. Finally, consistent application is important because it decreases the potential for discrimination and inequality, as it forces judges and law enforcement to make decisions based exclusively on the law and not on any other characteristics or demographic information. Furthermore, complicated immigration laws have a disparate impact on undocumented foreign nationals that are unable to afford representation.
The second reason that the Supreme Court should refer to the Acosta standard when making guidelines around PSGs is that it is more humane and more logical than standards set forth since. It allows the focus to remain on whether the immigrant would be unsafe if they were forced to return to their home country. In contrast, the standards today shift the focus to asking about particularity and social visibility, which are often irrelevant to the question of safety. For example, female genital mutilation is a well-recognized justification for asylum, but whether a woman has undergone such a violation is not outwardly visible or socially distinct at all. Therefore, the Acosta standard is superior to the 2014 three-part test that is used today.
If the courts returned to the Acosta standard, each controversial PSG—gender-based, gang-based, and domestic violence-based—should constitute a valid PSG if proven to be immutable in that case. To be clear, constituting a PSG is not the end of the inquiry, and the argument is not that every asylum application should be granted. Instead, the emphasis should turn away from the particularity and social visibility aspects of the PSG and only ask whether the characteristic in question is immutable, and if so, whether the undocumented foreign national reasonably fears persecution on account of it.
Under the Acosta standard, courts should consider gender-based claims a PSG. Gender is an immutable characteristic, or at least so fundamental to one’s identity that they should not be required to change. Although gender does not meet the requirement of particularity, it may be a basis for persecution. Women often experience human rights violations because of their gender, and those facing these violations should be protected. Crimes that affect women either exclusively or at higher rates than men include femicide, rape, domestic violence, female genital mutilation, honor killings, and human trafficking. If a person can prove that they have a reasonable fear of persecution on account of their gender, that person should be granted asylum.
Similarly, if a person can prove they are unable to leave their abuser, then a victim of domestic violence should constitute a PSG. Many victims are unable to leave for a multitude of reasons, including that it is sometimes more dangerous to leave than it is to stay. Victims of domestic violence may not be socially distinct or even meet the requisite particularity, but they deserve protection under the law. Since the June 2021 decision, these victims have gained more protection, and thus the issue is less concerning today than it has been the past several years. Nevertheless, the alternating standard is a cause for concern, and it would be beneficial for the Supreme Court to ensure there is not another change in opinion by the BIA.
Likewise, if the courts returned to the Acosta standard, gang-related asylum claims should often constitute a PSG. Like victims of domestic violence, it is often dangerous to leave or avoid a gang. Therefore, when the characteristic is immutable because gangs are so pervasive in a certain country that immigrants are unable to avoid their violence, gang-based claims should constitute PSGs. Furthermore, the current interpretation leads to illogical outcomes. In some instances, former gang membership might constitute a PSG, but in other instances, a woman or business owner being harassed by a gang member for not working for the gang would not be a PSG. Effectively, then, the courts are punishing people for not joining gangs by indicating to immigrants that they will receive more protections in the United States if they were gang members in their home countries. Each of these groups deserves protection if they are unable to change their situation, regardless of particularity or social distinction.
The divergences among asylum decisions illustrate the need for guidance from the Supreme Court. Immigrants deserve consistency and predictability in laws that drastically impact their safety. More importantly, each of these groups (as well as others not mentioned here) deserve protection. It is unjust to deny asylum based on arbitrary, court-made tests. Instead, the primary inquiry should be whether the foreign national would reasonably fear persecution in their native country, which is better analyzed through the Acosta standard than today’s three-part test.
 Jeanne Batalova, Mary Hanna, & Christopher Levesque, Frequently Requested Statistics on Immigrants and Immigration in the United States, Migration Pol’y Inst. (Feb. 11, 2021).
 8 USC §1158. The U.S.C. uses the term “aliens,” but this term may have a degrading connotation, so this article will instead use the terms “undocumented foreign nationals” or “immigrants.”
 Liliya Paraketsova, Why Guidance from the Supreme Court is Required in Redefining the Particular Social Group Definition in Refugee Law, 51 Univ. of Mich. J. of L. Reform 437, 447 (2018).
 Id. at 447-48.
 In re Acosta, 19 I. & N. Dec. 211, 212 (B.I.A. 1985).
 In re C-A-, 23 I. & N. Dec. 951 (B.I.A. 2006).
 In re S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008).
 In re M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014); In re W-G-R-, 26 I. & N. Dec. 208 (B.I.A. 2014).
 In re A-B-, 27 I. & N. Dec. 316 (B.I.A. 2018) (A-B- I); In re L-E-A-, 27 I. & N. Dec. 581 (B.I.A. 2019) (L-E-A- II).
 In re A-B-, 28 I. & N. Dec. 307 (B.I.A. 2021) (A-B- III).
 Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009) (holding social visibility requirement was inconsistent with past case law). See also Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984) (holding when a legislative delegation to an administrative agency on a particular issue is not explicit a court may not substitute its own interpretation of the statute for a reasonable interpretation made by that administrative agency, so circuit courts only gave deference to BIA’s new definition of PSG if it determined it reasonable).
 BIA Requires Asylum Seekers to Identify Particular Social Group, Cath. Legal Immigr. Network, Inc. (2021), https://cliniclegal.org/resources/humanitarian-relief/asylum-and-refugee-law/bia-requires-asylum-seekers-identify.
 Particular Social Group Practice Advisory: Applying for Asylum Based on Membership in a Particular Social Group, Nat’l. Immigrant Just. Ctr. (2021).
 Montecino v. Barr, No. 19-3438, 2020 U.S. App. LEXIS 20825 (6th Cir. 2020).
 Perez-Rabanales v. Sessions, 881 F.3d 61, 66 (1st Cir. 2018).
 In re Alba Luz Maldonado-Mendoza (B.I.A. 2017).
 Quintanilla-Diaz v. Wilkinson, 845 Fed. Appx. 512 (9th Cir. 2021).
 Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007).
 Id.; In re R-A-, 22 I. & N. Dec. 906 (B.I.A. 1999).
 INA Asylum Gender Guidelines, Am. Immigr. Laws. Ass’n (May 26, 1995).
 See supra Part II.A.
 Valentia Sergeiyevna Khohaynova v. Eric H. Holder, 641 F.3d 187 (6th Cir. 2011).
 Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010).
 Serrano-de Portillo v. Barr, 792 F. App’x 341, 342-43 (5th Cir. 2020).
 Particular Social Group Practice Advisory, supra note 15, at 5.
 Rivera-Montenegro v. Rosen, 840 Fed. App’x. 120 (9th Cir. 2007).
 See generally Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, Dep’t. of Urb. Plan. and Pol’y Univ. of Ill. at Chi. (May 2013).
 Particular Social Group Practice Advisory, supra note 15, at 7.
 Id. at 12.
 Id. at 25.