Categorical Confusion in Asylum Law

Abstract

As the Trump Administration placed ever new categorical limits on asylum, its opponents countered that asylum decisions have to be made on an individualized basis. The government, they claimed, cannot categorically exclude groups like former gang members or victims of gender-based violence from protection against persecution. Successful as this insistence on case-by-case adjudication has recently been, it stands in tension with past cases in which groups like nuclear families or gay men were categorically deemed eligible for asylum. The litigation and rulemaking currently reshaping asylum law suggest that neither side in the debate has fully understood whether, when, and why case-by-case rather than categorical decision-making is required. It turns out that what at first seems like confusion over procedure actually stems from unclarity about the substantive tests being adjudicated: the “social distinction” and, especially, the “particularity” requirements that are currently (mis)used as the primary reason for denying asylum claims, especially those brought by the tens of thousands of refugees fleeing gang and gendered violence. Properly understanding these tests allows us to understand whether they can be categorically applied—either to bar asylum claims or, perhaps in the Biden Administration, to make them possible.

Keywords: asylum, refugee law, immigration law, adjudication, precedent, particular social groups