Matter of M-E-V-G- and the BIA's Confounding Legal Standard For 'Membership in a Particular Social Group'

14-06 Immigr. Briefings 1

38 Pages Posted: 15 Dec 2016

See all articles by Benjamin Casper

Benjamin Casper

University of Minnesota - Twin Cities - School of Law

Kate Evans

Duke University School of Law

Julia Decker

University of Minnesota - Twin Cities - School of Law

Hayley Steptoe

University of Minnesota - Twin Cities - School of Law

Date Written: June 15, 2014

Abstract

This Briefing reviews the legal standard the United States uses to assess whether a “particular social group” is cognizable for purposes of asylum or withholding of removal relief, and it provides an update on the new “social visibility” and “particularity” tests the Board of Immigration Appeals (Board or BIA) has imposed on top of the traditional “immutable characteristics” standard of Matter of Acosta. The Board introduced the new tests in a series of precedents between 2006 and 2008, culminating in the gang-asylum cases, Matter of S-E-G- and Matter of E-A-G-, where the Board announced that “social visibility” and “particularity” would be strict requirements for all particular social groups. The Board’s departure from Acosta triggered extensive litigation and created a sharp split among circuit courts, with the Seventh and Third Circuits rejecting the new tests, and the Ninth Circuit calling them into question. In February of this year the Board responded with two new social group precedents, Matter of M-E-V-G- and Matter of W-G-R-. Part one of this Briefing discusses the framework for humanitarian protection and the authorities that should guide analysis of social group claims. Part two traces the path of U.S. social group law from Acosta’s influential “immutable characteristics” test to S-E-G-’s controversial “social visibility” and “particularity” requirements. Part three describes the circuit courts’ divided reaction to the Board’s departure from Acosta. Part four summarizes M-E-V-G- and the companion precedent W-G-R-, with a critical analysis of the decisions. Part five identifies more recent social group decisions and potentially significant social group litigation that practitioners should be aware of in the wake of M-E-V-G- and W-G-R-. Finally, this briefing ends with some strategic considerations for presenting social group claims and points practitioners to resources they can access for assistance when formulating social groups.

Keywords: Immigration, Asylum, Refugee, Particular Social Group

JEL Classification: K37

Suggested Citation

Casper, Benjamin and Evans, Kate and Decker, Julia and Steptoe, Hayley, Matter of M-E-V-G- and the BIA's Confounding Legal Standard For 'Membership in a Particular Social Group' (June 15, 2014). 14-06 Immigr. Briefings 1, Available at SSRN: https://ssrn.com/abstract=2884896

Benjamin Casper

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

Kate Evans (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Julia Decker

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

Hayley Steptoe

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

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