Brooklyn Law Review


Victims fleeing their native countries to escape violence, discrimination, or persecution are provided a limited number of mechanisms under current immigration law to gain refuge in the United States. Under the controlling law, aliens entering the United States are eligible for asylum if they qualify under one of five protected grounds, including race, religion, nationality, membership in a particular social group, or political opinion. But the complete lack of statutory guidance surrounding what constitutes a “particular social group” is incredibly controversial and confusing. The immigration statutes provide no language defining this protected ground. Thus, the guiding framework and eligibility criteria establishing membership in a particular social group has come from U.S. case law. In 2014, however, the Board of Immigration Appeals (BIA) decided two cases simultaneously that set the new standard for what constitutes membership in a particular social group. In Matter of W-G-R- and Matter of M-E-V-G-, the BIA created a three-element test that must be satisfied to establish eligibility in this protected group. With the adoption of this new standard, courts have struggled in applying all three elements. The purpose of this note is to review the foundation for the BIA’s three-part test, provide an analysis of the test’s impact on certain types of asylum claims, and, finally, to propose that a new definition of “particular social group” taken from Canadian case law be added to the Immigration & Nationality Act.