Journal of Law and Policy


Anjani P. Shah


This Note discusses the flaws in the tripartite analysis to determine whether an asylum seeker satisfies the protected ground of “membership in a ‘particular social group’” (“PSG”). An applicant seeking a PSG determination must prove: (1) “immutability,” (2) “social distinction,” and (3) “particularity.” This Note argues that when PSG asylum claims are denied and appealed to the Board of Immigration Appeals (“BIA”), the BIA has incoherently tangled what is actually required in order to compel an affirmative PSG determination. One group of asylum seekers that has been significantly disadvantaged by this tripartite test is former gang members. This Note argues that when applying the BIA’s PSG requirements to former gang members seeking asylum protection, these requirements have been unnecessarily complicated and inconsistent. Moreover, the concepts of national identity and public sentiment about who “deserves” a pathway to citizenship have pushed the United States further from its obligations to asylum seekers. This Note proposes a return to the stand-alone standard of “immutability” from Matter of Acosta in order to provide reviewing courts, immigration judges, asylum officers, and applicants with a precise, predictable, and well-reasoned assessment of asylum claims made by former gang members.