Countless asylum seekers have been sent to their deaths, and many more returned to egregious harms – not just because of the now-familiar border closures and Trump’s equally atrocious Remain in Mexico policy – but because of the willfully distorted interpretation of three words in the refugee definition. Those words are “particular social group” (“PSG”).

The Justice Department’s Board of Immigration Appeals (BIA), a tribunal with the power to create legally binding nationwide precedents, has upended law, policy, and sheer logic to define “PSG” in a way that practically ensures the denial of asylum claims – with a special eye toward those of Central Americans. There is a golden opportunity to change course, with President Joe Biden’s Feb. 2 Executive Order committing to issue regulations addressing the proper meaning of PSG.

The Importance of “Particular Social Group” to Refugee Protection

To receive asylum in the United States, one must be a “refugee.” That term, drawn from an international convention to which the United States is a party (the 1967 Protocol to the Refugee Convention), requires a “well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.” In the United States, the Refugee Act of 1980, incorporated into the Immigration and Nationality Act, tracks that language. Because many – if not most – Central American asylum seekers are not seen as being persecuted for their race, religion, nationality, or political opinion (U.S. courts being reluctant to recognize feminism and opposition to gang rule as political opinions), an ability to show persecution on account of PSG membership often means the difference between life and death.

At First the BIA Gets it Right:  Matter of Acosta

The BIA first defined PSG in its seminal 1985 decision, Matter of Acosta. Referring to the requirement that the persecution be on account of one of the five specific grounds described above, the BIA observed that the other four (race, religion, nationality, and political opinion) all describe “immutable characteristics.” By “immutable,” they mean those that either the individual cannot change or are so “fundamental to the individual’s identity or conscience” that the person should not have to change them in order to avoid persecution. The BIA reasoned that a PSG was similarly a group defined by literally immutable or fundamental characteristics. It gave examples such as “sex, color, or kinship ties,” or shared past experience such as “former military leadership or land ownership.” In a line of cases from 1990 to 1997, it found gay men in Cuba, women from Togo of a specific tribe fleeing female genital cutting, members of subclans in Somalia, and former members of the national police to be particular social groups. In each of these cases, the asylum claim could not have been successfully based on race, religion, nationality, or political opinion.

Central Americans Arrive and the BIA Changes Course:  Requiring “Social Distinction” and “Particularity”

The BIA could not leave well enough alone. Starting in 1999, it began hinting that, in addition to Acosta’s immutability requirement, one who claims persecution based on membership in a PSG would need to show what today are called “social distinction” and “particularity.” By “social distinction,” the BIA means that in order for a class of individuals to be a PSG, society in the applicant’s home country must think of those individuals as a “group.” By “particularity,” the BIA means that the home society must be able to tell easily who is in the group and who is not. The hints became legal precedents in 2006, when the BIA formally required social distinction for all PSG claims, and 2007, when it made “particularity” a requirement as well.

 In the wake of the BIA’s new requirements, asylum claims that were based on PSG – and which most likely would have been approved under the Acosta immutability test – were denied left and right. Two Salvadoran brothers who had refused a gang’s demand to join them were beaten, and their sister threatened with rape. A Honduran asylum seeker similarly resisted the gang’s recruitment efforts; two of his brothers had been gang members and had been killed. A family was targeted for persecution for the actions of one of its members. All these claims were denied for failure to prove social distinction or particularity, or both.

There was one notable exception to this pattern, but it was short-lived. Gender is not one of the five statutory grounds, so claims involving persecution inflicted because of gender rely heavily on the PSG ground. In 2014, the BIA decided the asylum claim of a Guatemalan woman whose husband had physically brutalized her, broken her nose, burned her breast, and punched her in the stomach with such force when she was eight months pregnant that her baby was badly bruised and born prematurely. President Obama’s Justice Department submitted a brief stating that the applicant had been persecuted because of her membership in a PSG, which it defined as married women in Guatemala who are unable to leave their relationships. The BIA agreed and granted asylum, but in 2018, in a highly publicized decision, Matter of A-B-, former Attorney General Sessions vacated that decision. In contradiction to the widely accepted principle that “women’s rights are human rights,” Sessions characterized domestic violence as “private criminal activity” and made the sweeping statement that asylum claims based on domestic violence — and gang violence — generally do “not qualify for asylum.”

This brief summary illustrates just some of the cruelties that have resulted from the BIA’s abandonment of Acosta and its invention of the social distinction and particularity requirements. But are the BIA’s extra requirements necessarily either bad law or bad policy? We believe they are both. As discussed below, these new requirements make no logical sense, leave the law hopelessly unpredictable, are nearly impossible to satisfy, and have no convincing legal basis.

“Social Distinction” and “Particularity” Make No Logical Sense

First, there was never any reason to tamper with Acosta’s immutability test, for it makes perfect sense. If the only reason you will be persecuted is that you possess some insignificant characteristic that you can easily change (because it is not literally immutable and is not a fundamental or deeply held belief), then you don’t need asylum in order to be protected; you can simply discard that characteristic. Someone who is punished for frequenting a specific park or skateboarding in a specific plaza, for example, could avoid persecution simply by substituting a different venue; “inconvenient” doesn’t rise to the level of “fundamental” to conscience or identity. If, instead, the characteristic either literally cannot be changed or is so fundamental to your identity or your conscience that you ought not be required to change it, then asylum is your only realistic means of protection. This is a legal test that works well. It allows asylum for those who need it and withholds it from those who don’t.

By way of example, gender is an immutable characteristic. Thus, if one will be persecuted because of her gender, changing the characteristic is not an option; asylum is her only reasonable means of protection. Similarly, there are two ways in which both those who resisted gang recruitment and those who defected from gangs could satisfy the Acosta immutability test, depending on the facts. If the facts are that the die has been cast, and the gang would persecute the applicant for having resisted or defected even if the applicant were to join or rejoin the gang, then the applicant’s past decision would be the required immutable characteristic; one cannot change the past. Importantly, however, the immutability test also recognizes that an individual should not be required to abdicate fundamental beliefs of conscience to avoid persecution. Thus, even if the facts are that all would be forgiven if the applicant were to return home and join or rejoin the gang, the applicant would still meet the Acosta requirements when the resistance or defection was a matter of conscience.

In contrast, the social distinction and particularity requirements that the BIA has piled on bear no logical connection to asylum. As to the former, why should the U.S. decision whether to grant asylum to someone whose life is truly at risk depend on whether people in the applicant’s home country would describe a given class of individuals as a “group”? The BIA offers no answer to that question, arguing only that this reading is compelled by the text of the statute and the Convention, a flawed conclusion as we explain below.

The “particularity” requirement appears to mean that the group’s boundaries must be defined with enough specificity that there will be “a clear benchmark for determining who falls within the group.” But as long as a group is defined specifically enough for the applicant to prove that he or she is a member, why should asylum be denied solely because, somewhere, there might be hypothetical other individuals whose group membership is a closer call?

Although this article argues only for a return to the Acosta immutability test, there is, if anything, greater reason to broaden the Acosta test than to restrict it. Arguably, for example, the forthcoming Biden administration regulations could define PSG as a group defined by characteristics that are either immutable or otherwise socially significant. And it could also follow guidance issued by the UN agency with a mandate to serve as the “guardian” of the Refugee Protocol, to which the United States is a party and on which U.S. domestic refugee law is based, in an effort to bring U.S. practice in line with international standards.  Under that guidance, social perception is an alternative way to establish a PSG in cases in which the defining characteristic is not immutable.

They Leave the Law Hopelessly Unpredictable

The meanings of the terms “social distinction” and “particularity” are so vague, and the resulting outcomes so rife with inconsistencies, that even the most seasoned immigration lawyers and immigration adjudicators can only guess whether the BIA will consider any given class of individuals a PSG. Unpredictable law alone is cause for concern; the arbitrary justice that it spawns is even more disturbing.

As to social distinction, the BIA has implicitly decided that the home society thinks of LGBTQ individuals as a group, but Sessions suggested that the home society doesn’t regard the nuclear family as a group – even though the BIA acknowledges that Somalian society considers a subclan to be a group. In the BIA’s view, the home society thinks victims of female genital cutting are a group but that victims of domestic violence are not. Nor, the BIA tells us, do home societies consider either people who refused to join gangs or people who defected from gangs to be groups. If there is a common thread in those results, it is not apparent.

And while we’re at it, what do the home societies who are making these imaginary determinations even understand the word “group” to mean? Are they supposed to be opining on whether the individuals hang out together? Whether they have something in common? Whether they differ from the rest of society in some meaningful way? None of those formulations would unite the outcomes described above.

The particularity requirement has generated even wilder inconsistencies. As the BIA sees it, gang defectors and people who have been deported are not “particular” enough because their ranks include “men, women, and children of all ages,” but the LGBTQ community is apparently particular enough even though it also includes men, women, and children of all ages. “Youth” is too vague a term to meet the particularity requirement, the BIA tells us, but “young” women who “oppose”  the type of female genital cutting practiced by their tribe are not similarly vague.

They Are Nearly Impossible to Satisfy

Even if there were a clear understanding of what the BIA means by the social distinction requirement that the home society thinks of the individuals as a “group,” how is the applicant supposed to prove – and how is the adjudicator supposed to decide – what that home society thinks? Must the applicant commission a public survey, overseas? What percentage of the home society has to agree that the individuals comprise a “group”? As to particularity, if “men, women, and children of different ages” cannot form a “group,” who can? Just men? Just women? Just children of certain ages? This would exclude not only numerous groups already held to meet the test, but even those who qualify under the other persecution factors listed in refugee law (like race, religion, and nationality).

It gets worse, because particularity and social distinction work at cross purposes. Sessions in the A-B- case said that if the group is defined too broadly, it will fail the particularity requirement, but that if it is defined too narrowly it will fail the social distinction requirement. Even Goldilocks would struggle to thread this needle. Similarly, the BIA rejected wealthy Guatemalans as a PSG because “wealth” is too subjective to meet the particularity requirement. But define the group with too much specificity – for example, Guatemalans with an annual income of more than $50,000 – and run the risk that the group will not be socially distinct.

The proof is in the pudding: Since its invention of the social distinction and particularity requirements, the BIA has not issued a single precedential decision recognizing a PSG – with the exception of A-R-C-G-, which Sessions vacated. The practical effect of these new requirements is to write the PSG language out of the statute, with the resulting denial of protection even in cases where the risk to life is undisputed.

They Have No Convincing Legal Basis

Cruel, irrational, and ambiguous as they may be, are the social distinction and particularity requirements nonetheless legally mandated? We don’t think so.

The BIA has tried to defend its social distinction requirement by highlighting Congress’s, and the Convention’s, use of the word “social” in the phrase “particular social group.” But that is a non sequitur. There is no reason to think that the word “social” means the home society must describe the applicant’s class as a “group,” especially since, as discussed earlier, such a requirement serves no rational policy.

The United Nations High Commissioner for Refugees (UNHCR), the UN agency charged with supervising the international conventions on which U.S. statutory refugee law is based, issued Guidelines in 2002 that recognize “social perception” (akin to social distinction) as an additional basis for a PSG. On at least two occasions, the BIA offered these guidelines as support for its social distinction requirement, stating misleadingly that the UNHCR Guidelines “endorse” social perception as an “important factor.” “Important” it might well be, but far from supporting a social distinction requirement, the cited Guidelines merely make social perception an alternative basis for PSG. They make clear that immutability alone is equally sufficient. In 2014 the BIA finally conceded that its requirements cannot be squared with those of UNHCR (but did not alter its own jurisprudence).

To justify the particularity requirement, the BIA has highlighted the word “particular” in the phrase “particular social group.” In everyday English, “particular” does not ordinarily mean “easy for the home country’s society to tell whether any given individual is a member of the group.” Nor does naming this new requirement “particularity,” presumably because that word sounds like “particular,” strengthen the BIA’s case. As discussed above, there is no legitimate purpose that that requirement rationally serves, and thus no reason to believe Congress – or the drafters of the Refugee Convention and its Protocol before it – so intended. A more natural reading of “particular” – and at the least, again, a permissible interpretation – is “specific.” The adjudicator has to find that there is some specific group that the applicant is a member of, and that it is because of that group membership that the applicant has a well-founded fear of persecution. If we ask you whether you are a member of any “particular” group, you would not assume we are asking you how clear or how fuzzy the membership criteria for your group are.

But perhaps the BIA’s most desperate attempt to make its new requirements look legally respectable is its claim that “the generality of the Acosta standard led to confusion and a lack of consistency.” The BIA explained that it needed to “refine” Acosta’s PSG interpretation “to provide clarification.” The Board had it backwards. No PSG test could be expected to guarantee consistent, predictable results in every case, but the Acosta immutability test was far more straightforward than the tests the BIA applies today. As discussed earlier, it is the extreme vagueness of the social distinction and particularity requirements that have bred inconsistency, ambiguity, guesswork, and jurisprudential chaos.

Positive Signs from President Biden

In his Feb. 2 Executive Order, President Biden committed the relevant U.S. agencies to revisit the interpretation of PSG, “as the term is used in [the INA], as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.” The Order specifically calls for a review of all relevant agency authority to determine “whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards.” These explicit references to international standards and in particular the treaties upon which U.S. refugee law is based hopefully portend a willingness to draw upon international guidance.

We hope this means that, at a minimum, a return to Acosta and the burial of the social distinction and particularity requirements for PSG claims are finally in sight. Humanity and respect for law demand no less.

IMAGE: TIJUANA, MEXICO: People from El Salvador and Honduras who are seeking asylum in the United States sit outside the El Chaparral border crossing on February 19, 2021 in Tijuana, Mexico. (Photo by Mario Tama/Getty Images)