Who Are the Real Refugees? Labels as Evidence of a “Particular Social Group”

The United States is at its humanitarian best when it welcomes the persecuted of the world as its own. Among numerous elements, one claiming asylum must show that he or she has suffered or will suffer persecution on the basis of one of five protected grounds: race, nationality, religion, political opinion, or membership of a particular social group (“PSG”). Presently, the Board of Immigration Appeals (“the Board”) requires one seeking asylum based on membership in a PSG to show that her proposed group shares an immutable characteristic, is particular, and is socially distinct.

Unfortunately, PSG doctrine has two major faults. First, the Board frequently examines a PSG using analysis suited for other elements of an asylum claim. As a result, PSG doctrine is unnecessarily complicated and inconsistent. Second, the Board has not clarified the types of evidence it accepts. Adding to the confusion, the Third and Seventh Circuit Court of Appeals explicitly do not require a showing of particularity or social distinction, resulting in a circuit split. Unsurprisingly, the result is that many prospective refugees who might otherwise prove their claims are not granted asylum.

This problem, however, is not without a solution. All cultures practice labeling, a technique that allows them to identify a collection of people and speak of them as a group. Applying PSG terminology, labeling signifies that group members share an immutable characteristic, that the group has definite boundaries, and that the culture recognizes these people as a group. Accordingly, and in conjunction with a wellcabined analysis of each element, the Board can clarify PSG doctrine and effectively mend the circuit split by recognizing labels as simultaneous evidence of immutability, particularity, and social distinction. Further, by doing so, the Board will enable the United States to spare refugees from needless suffering while meeting its noblest humanitarian commitments.