5
suffered from legal infirmity. The decisions ignored the fact that PSGs the BIA had
previously accepted, such as young women of a particular tribe who oppose female genital
mutilation, or gay men from a particular country, no longer appeared viable under this new
test. While many circuits deferred to the BIA’s addition of the two new PSG requirements
under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984), other
courts – specifically the Seventh Circuit and, for a while, the Third Circuit – rejected the
requirements and declined to find that they merited Chevron deference.
In February 2014, the BIA doubled-down on its PSG test and issued two decisions,
Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)
3
and Matter of W-G-R-, 26 I&N Dec. 20 (BIA
2014), which restated and emphasized the BIA’s decision in S-E-G-. In M-E-V-G-, the BIA
clarified that social visibility does not mean literal visibility, but instead refers to whether
the PSG is recognized within society as a distinct entity. 26 I&N Dec. at 240-41. The BIA
therefore renamed the requirement “social distinction.” The decisions did not clarify or re-
interpret the “particularity” requirement, but did include troubling dicta. For example, in
W-G-R-, the BIA applied the particularity test to a PSG composed of former gang members.
The BIA held that such a group failed the “particularity” requirement because “the group
could include persons of any age, sex, or background,” despite having previously noted in
Matter of C-A-, 23 I&N Dec. 951, 956-57 (BIA 2006), that homogeneity was not a requirement
for a PSG. 26 I&N Dec. at 221. According to the BIA, such a group would need to be
defined with additional specificity to be viable. Id. at 222.
The BIA claimed its intention in issuing the two decisions was to “provide guidance to
courts and those seeking asylum,” M-E-V-G-, 26 I&N Dec. at 234, citing FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515-16 (2009). The decisions, however, suffer from the same
errors as S-E-G- and E-A-G-, and are made worse by the fact that M-E-V-G- and W-G-R-
seek to rationalize a legal test that is irreconcilable with prior domestic and international
asylum law. These errors continued in the BIA’s August 2014 decision, Matter of A-R-C-G-,
26 I&N Dec. 388 (BIA 2014), in which it found that the group of “married women in
Guatemala who are unable to leave their relationship” was socially distinct and sufficiently
particular. While this decision provided much-needed recognition that domestic violence
survivors can be eligible for asylum, the BIA’s particular social group analysis remained
inconsistent with prior BIA case law and problematic. Below are some of the critical errors
in the BIA’s analysis.
1. The BIA’s post-hoc rationalization of the social distinction and
particularity requirements is disingenuous.
A frequent criticism of the BIA’s decisions in S-E-G- and E-A-G- was that the BIA had
not explained how previously accepted PSGs would still qualify under the new standard.
3
NIJC submitted an amicus brief in support of the respondent in M-E-V-G-.